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Senate Bill 0328

Senate Bill sb0328

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                   SB 328

    By Senator Saunders





    37-84-04

  1                      A bill to be entitled

  2         An act relating to employment background

  3         screening; amending s. 435.03, F.S.; providing

  4         additional criminal offenses and deleting an

  5         offense that would disqualify a person subject

  6         to level 1 screening standards from employment;

  7         amending s. 435.04, F.S.; providing additional

  8         criminal offenses and deleting an offense that

  9         would disqualify a person subject to level 2

10         screening standards from employment; amending

11         ss. 943.0585 and 943.059, F.S.; adding the

12         Agency for Health Care Administration to the

13         list of agencies permitted to receive expunged

14         criminal history records and sealed criminal

15         history records; providing additional offenses

16         for which a person may not lawfully deny or

17         fail to acknowledge an arrest with respect to

18         an expunged or sealed record; reenacting ss.

19         39.821(1) and 400.414(1)(g), F.S., relating to

20         guardians ad litem and assisted living

21         facilities, to incorporate the amendment to ss.

22         435.03 and 435.04, F.S., in references thereto;

23         providing an effective date.

24  

25  Be It Enacted by the Legislature of the State of Florida:

26  

27         Section 1.  Subsections (2) and (3) of section 435.03,

28  Florida Statutes, are amended to read:

29         435.03  Level 1 screening standards.--

30         (2)  Any person for whom employment screening is

31  required by statute must not have been found guilty of,

                                  1

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1  regardless of adjudication, or entered a plea of nolo

 2  contendere or guilty to, any offense prohibited under any of

 3  the following provisions of the Florida Statutes or under any

 4  similar statute of another jurisdiction:

 5         (a)  Former section Section 415.111, relating to abuse,

 6  neglect, or exploitation of a vulnerable adult.

 7         (b)  Section 782.04, relating to murder.

 8         (c)  Section 782.07, relating to manslaughter,

 9  aggravated manslaughter of an elderly person or disabled

10  adult, or aggravated manslaughter of a child.

11         (d)  Section 782.071, relating to vehicular homicide.

12         (e)  Section 782.09, relating to killing of an unborn

13  child by injury to the mother.

14         (f)  Section 784.011, relating to assault, if the

15  victim of the offense was a minor.

16         (g)  Section 784.021, relating to aggravated assault.

17         (h)  Section 784.03, relating to battery, if the victim

18  of the offense was a minor.

19         (i)  Section 784.045, relating to aggravated battery.

20         (j)  Section 787.01, relating to kidnapping.

21         (k)  Section 787.02, relating to false imprisonment.

22         (l)  Chapter 794 Section 794.011, relating to sexual

23  battery.

24         (m)  Former s. 794.041, relating to prohibited acts of

25  persons in familial or custodial authority.

26         (n)  Chapter 796, relating to prostitution.

27         (o)  Section 798.02, relating to lewd and lascivious

28  behavior.

29         (o)(p)  Chapter 800, relating to lewdness and indecent

30  exposure.

31         (p)(q)  Section 806.01, relating to arson.

                                  2

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1         (q)(r)  Chapter 812, relating to theft, robbery, and

 2  related crimes, if the offense was a felony.

 3         (r)(s)  Section 817.563, relating to fraudulent sale of

 4  controlled substances, only if the offense was a felony.

 5         (s)(t)  Section 825.102, relating to abuse, aggravated

 6  abuse, or neglect of an elderly person or disabled adult.

 7         (t)(u)  Section 825.1025, relating to lewd or

 8  lascivious offenses committed upon or in the presence of an

 9  elderly person or disabled adult.

10         (u)(v)  Section 825.103, relating to exploitation of an

11  elderly person or disabled adult, if the offense was a felony.

12         (v)(w)  Section 826.04, relating to incest.

13         (w)(x)  Section 827.03, relating to child abuse,

14  aggravated child abuse, or neglect of a child.

15         (x)(y)  Section 827.04, relating to contributing to the

16  delinquency or dependency of a child.

17         (y)(z)  Former s. 827.05, relating to negligent

18  treatment of children.

19         (z)(aa)  Section 827.071, relating to sexual

20  performance by a child.

21         (aa)(bb)  Chapter 847, relating to obscene literature.

22         (bb)(cc)  Chapter 893, relating to drug abuse

23  prevention and control, only if the offense was a felony or if

24  any other person involved in the offense was a minor.

25         (3)  Standards must also ensure that the person:

26         (a)  For employees and employers licensed or registered

27  pursuant to chapter 400, and for employees and employers of

28  developmental services institutions as defined in s. 393.063,

29  intermediate care facilities for the developmentally disabled

30  as defined in s. 393.063, and mental health treatment

31  

                                  3

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1  facilities as defined in s. 394.455, meets the requirements of

 2  this chapter.

 3         (b)  Has not committed an act that constitutes domestic

 4  violence as defined in s. 741.28(1) or committed a violation

 5  of any order for injunction for protection as described in s.

 6  741.30 or s. 741.31 s. 741.28.

 7         Section 2.  Subsections (2) and (4) of section 435.04,

 8  Florida Statutes, are amended to read:

 9         435.04  Level 2 screening standards.--

10         (2)  The security background investigations under this

11  section must ensure that no persons subject to the provisions

12  of this section have been found guilty of, regardless of

13  adjudication, or entered a plea of nolo contendere or guilty

14  to, any offense prohibited under any of the following

15  provisions of the Florida Statutes or under any similar

16  statute of another jurisdiction:

17         (a)  Former section Section 415.111, relating to adult

18  abuse, neglect, or exploitation of aged persons or disabled

19  adults.

20         (b)  Section 782.04, relating to murder.

21         (c)  Section 782.07, relating to manslaughter,

22  aggravated manslaughter of an elderly person or disabled

23  adult, or aggravated manslaughter of a child.

24         (d)  Section 782.071, relating to vehicular homicide.

25         (e)  Section 782.09, relating to killing of an unborn

26  child by injury to the mother.

27         (f)  Section 784.011, relating to assault, if the

28  victim of the offense was a minor.

29         (g)  Section 784.021, relating to aggravated assault.

30         (h)  Section 784.03, relating to battery, if the victim

31  of the offense was a minor.

                                  4

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1         (i)  Section 784.045, relating to aggravated battery.

 2         (j)  Section 784.075, relating to battery on a

 3  detention or commitment facility staff.

 4         (k)  Section 787.01, relating to kidnapping.

 5         (l)  Section 787.02, relating to false imprisonment.

 6         (m)  Section 787.04(2), relating to taking, enticing,

 7  or removing a child beyond the state limits with criminal

 8  intent pending custody proceedings.

 9         (n)  Section 787.04(3), relating to carrying a child

10  beyond the state lines with criminal intent to avoid producing

11  a child at a custody hearing or delivering the child to the

12  designated person.

13         (o)  Section 790.115(1), relating to exhibiting

14  firearms or weapons within 1,000 feet of a school.

15         (p)  Section 790.115(2)(b), relating to possessing an

16  electric weapon or device, destructive device, or other weapon

17  on school property.

18         (q)  Chapter 794 Section 794.011, relating to sexual

19  battery.

20         (r)  Former s. 794.041, relating to prohibited acts of

21  persons in familial or custodial authority.

22         (s)  Chapter 796, relating to prostitution.

23         (t)  Section 798.02, relating to lewd and lascivious

24  behavior.

25         (t)(u)  Chapter 800, relating to lewdness and indecent

26  exposure.

27         (u)(v)  Section 806.01, relating to arson.

28         (v)(w)  Chapter 812, relating to theft, robbery, and

29  related crimes, if the offense is a felony.

30         (w)(x)  Section 817.563, relating to fraudulent sale of

31  controlled substances, only if the offense was a felony.

                                  5

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1         (x)(y)  Section 825.102, relating to abuse, aggravated

 2  abuse, or neglect of an elderly person or disabled adult.

 3         (y)(z)  Section 825.1025, relating to lewd or

 4  lascivious offenses committed upon or in the presence of an

 5  elderly person or disabled adult.

 6         (z)(aa)  Section 825.103, relating to exploitation of

 7  an elderly person or disabled adult, if the offense was a

 8  felony.

 9         (aa)(bb)  Section 826.04, relating to incest.

10         (bb)(cc)  Section 827.03, relating to child abuse,

11  aggravated child abuse, or neglect of a child.

12         (cc)(dd)  Section 827.04, relating to contributing to

13  the delinquency or dependency of a child.

14         (dd)(ee)  Former s. 827.05, relating to negligent

15  treatment of children.

16         (ee)(ff)  Section 827.071, relating to sexual

17  performance by a child.

18         (ff)(gg)  Section 843.01, relating to resisting arrest

19  with violence.

20         (gg)(hh)  Section 843.025, relating to depriving a law

21  enforcement, correctional, or correctional probation officer

22  means of protection or communication.

23         (hh)(ii)  Section 843.12, relating to aiding in an

24  escape.

25         (ii)(jj)  Section 843.13, relating to aiding in the

26  escape of juvenile inmates in correctional institutions.

27         (jj)(kk)  Chapter 847, relating to obscene literature.

28         (kk)(ll)  Section 874.05(1), relating to encouraging or

29  recruiting another to join a criminal gang.

30  

31  

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1         (ll)(mm)  Chapter 893, relating to drug abuse

 2  prevention and control, only if the offense was a felony or if

 3  any other person involved in the offense was a minor.

 4         (mm)(nn)  Section 944.35(3), relating to inflicting

 5  cruel or inhuman treatment on an inmate resulting in great

 6  bodily harm.

 7         (nn)(oo)  Section 944.46, relating to harboring,

 8  concealing, or aiding an escaped prisoner.

 9         (oo)(pp)  Section 944.47, relating to introduction of

10  contraband into a correctional facility.

11         (pp)(qq)  Section 985.4045, relating to sexual

12  misconduct in juvenile justice programs.

13         (qq)(rr)  Section 985.4046, relating to contraband

14  introduced into detention facilities.

15         (4)  Standards must also ensure that the person:

16         (a)  For employees or employers licensed or registered

17  pursuant to chapter 400, does not have a confirmed report of

18  abuse, neglect, or exploitation as defined in s. 415.102(6),

19  which has been uncontested or upheld under s. 415.103.

20         (b)  has not committed an act that constitutes domestic

21  violence as defined in s. 741.28 s. 741.30.

22         Section 3.  Paragraph (a) of subsection (4) of section

23  943.0585, Florida Statutes, is amended to read:

24         943.0585  Court-ordered expunction of criminal history

25  records.--The courts of this state have jurisdiction over

26  their own procedures, including the maintenance, expunction,

27  and correction of judicial records containing criminal history

28  information to the extent such procedures are not inconsistent

29  with the conditions, responsibilities, and duties established

30  by this section. Any court of competent jurisdiction may order

31  a criminal justice agency to expunge the criminal history

                                  7

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1  record of a minor or an adult who complies with the

 2  requirements of this section. The court shall not order a

 3  criminal justice agency to expunge a criminal history record

 4  until the person seeking to expunge a criminal history record

 5  has applied for and received a certificate of eligibility for

 6  expunction pursuant to subsection (2). A criminal history

 7  record that relates to a violation of s. 787.025, chapter 794,

 8  s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071,

 9  chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.

10  893.135, or a violation enumerated in s. 907.041 may not be

11  expunged, without regard to whether adjudication was withheld,

12  if the defendant was found guilty of or pled guilty or nolo

13  contendere to the offense, or if the defendant, as a minor,

14  was found to have committed, or pled guilty or nolo contendere

15  to committing, the offense as a delinquent act. The court may

16  only order expunction of a criminal history record pertaining

17  to one arrest or one incident of alleged criminal activity,

18  except as provided in this section. The court may, at its sole

19  discretion, order the expunction of a criminal history record

20  pertaining to more than one arrest if the additional arrests

21  directly relate to the original arrest. If the court intends

22  to order the expunction of records pertaining to such

23  additional arrests, such intent must be specified in the

24  order. A criminal justice agency may not expunge any record

25  pertaining to such additional arrests if the order to expunge

26  does not articulate the intention of the court to expunge a

27  record pertaining to more than one arrest. This section does

28  not prevent the court from ordering the expunction of only a

29  portion of a criminal history record pertaining to one arrest

30  or one incident of alleged criminal activity. Notwithstanding

31  any law to the contrary, a criminal justice agency may comply

                                  8

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1  with laws, court orders, and official requests of other

 2  jurisdictions relating to expunction, correction, or

 3  confidential handling of criminal history records or

 4  information derived therefrom. This section does not confer

 5  any right to the expunction of any criminal history record,

 6  and any request for expunction of a criminal history record

 7  may be denied at the sole discretion of the court.

 8         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

 9  criminal history record of a minor or an adult which is

10  ordered expunged by a court of competent jurisdiction pursuant

11  to this section must be physically destroyed or obliterated by

12  any criminal justice agency having custody of such record;

13  except that any criminal history record in the custody of the

14  department must be retained in all cases. A criminal history

15  record ordered expunged that is retained by the department is

16  confidential and exempt from the provisions of s. 119.07(1)

17  and s. 24(a), Art. I of the State Constitution and not

18  available to any person or entity except upon order of a court

19  of competent jurisdiction. A criminal justice agency may

20  retain a notation indicating compliance with an order to

21  expunge.

22         (a)  The person who is the subject of a criminal

23  history record that is expunged under this section or under

24  other provisions of law, including former s. 893.14, former s.

25  901.33, and former s. 943.058, may lawfully deny or fail to

26  acknowledge the arrests covered by the expunged record, except

27  when the subject of the record:

28         1.  Is a candidate for employment with a criminal

29  justice agency;

30         2.  Is a defendant in a criminal prosecution;

31  

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1         3.  Concurrently or subsequently petitions for relief

 2  under this section or s. 943.059;

 3         4.  Is a candidate for admission to The Florida Bar;

 4         5.  Is seeking to be employed or licensed by or to

 5  contract with the Agency for Health Care Administration, the

 6  Department of Children and Family Services, or the Department

 7  of Juvenile Justice or to be employed or used by such

 8  contractor or licensee in a position subject to background

 9  screening in accordance with chapter 435 or a sensitive

10  position having direct contact with children, the

11  developmentally disabled, the aged, or the elderly as provided

12  in s. 110.1127(3), s. 112.0455, s. 381.60225, s. 383.305, s.

13  390.015, s. 393.063(15), s. 394.4572(1), s. 394.875, s.

14  395.0055, s. 395.0199, s. 397.451, s. 402.302(3), s.

15  402.313(3), s. 409.175(2)(i), s. 415.102(4), s. 415.103, s.

16  483.101, s. 483.30, s. 985.407, or chapter 400; or

17         6.  Is seeking to be employed or licensed by the Office

18  of Teacher Education, Certification, Staff Development, and

19  Professional Practices of the Department of Education, any

20  district school board, or any local governmental entity that

21  licenses child care facilities.

22         Section 4.  Paragraph (a) of subsection (4) of section

23  943.059, Florida Statutes, is amended to read:

24         943.059  Court-ordered sealing of criminal history

25  records.--The courts of this state shall continue to have

26  jurisdiction over their own procedures, including the

27  maintenance, sealing, and correction of judicial records

28  containing criminal history information to the extent such

29  procedures are not inconsistent with the conditions,

30  responsibilities, and duties established by this section. Any

31  court of competent jurisdiction may order a criminal justice

                                  10

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    Florida Senate - 2004                                   SB 328
    37-84-04




 1  agency to seal the criminal history record of a minor or an

 2  adult who complies with the requirements of this section. The

 3  court shall not order a criminal justice agency to seal a

 4  criminal history record until the person seeking to seal a

 5  criminal history record has applied for and received a

 6  certificate of eligibility for sealing pursuant to subsection

 7  (2). A criminal history record that relates to a violation of

 8  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.

 9  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,

10  s. 847.0145, s. 893.135, or a violation enumerated in s.

11  907.041 may not be sealed, without regard to whether

12  adjudication was withheld, if the defendant was found guilty

13  of or pled guilty or nolo contendere to the offense, or if the

14  defendant, as a minor, was found to have committed or pled

15  guilty or nolo contendere to committing the offense as a

16  delinquent act. The court may only order sealing of a criminal

17  history record pertaining to one arrest or one incident of

18  alleged criminal activity, except as provided in this section.

19  The court may, at its sole discretion, order the sealing of a

20  criminal history record pertaining to more than one arrest if

21  the additional arrests directly relate to the original arrest.

22  If the court intends to order the sealing of records

23  pertaining to such additional arrests, such intent must be

24  specified in the order. A criminal justice agency may not seal

25  any record pertaining to such additional arrests if the order

26  to seal does not articulate the intention of the court to seal

27  records pertaining to more than one arrest. This section does

28  not prevent the court from ordering the sealing of only a

29  portion of a criminal history record pertaining to one arrest

30  or one incident of alleged criminal activity. Notwithstanding

31  any law to the contrary, a criminal justice agency may comply

                                  11

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    Florida Senate - 2004                                   SB 328
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 1  with laws, court orders, and official requests of other

 2  jurisdictions relating to sealing, correction, or confidential

 3  handling of criminal history records or information derived

 4  therefrom. This section does not confer any right to the

 5  sealing of any criminal history record, and any request for

 6  sealing a criminal history record may be denied at the sole

 7  discretion of the court.

 8         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

 9  criminal history record of a minor or an adult which is

10  ordered sealed by a court of competent jurisdiction pursuant

11  to this section is confidential and exempt from the provisions

12  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

13  and is available only to the person who is the subject of the

14  record, to the subject's attorney, to criminal justice

15  agencies for their respective criminal justice purposes, or to

16  those entities set forth in subparagraphs (a)1., 4., 5., and

17  6. for their respective licensing and employment purposes.

18         (a)  The subject of a criminal history record sealed

19  under this section or under other provisions of law, including

20  former s. 893.14, former s. 901.33, and former s. 943.058, may

21  lawfully deny or fail to acknowledge the arrests covered by

22  the sealed record, except when the subject of the record:

23         1.  Is a candidate for employment with a criminal

24  justice agency;

25         2.  Is a defendant in a criminal prosecution;

26         3.  Concurrently or subsequently petitions for relief

27  under this section or s. 943.0585;

28         4.  Is a candidate for admission to The Florida Bar;

29         5.  Is seeking to be employed or licensed by or to

30  contract with the Agency for Health Care Administration, the

31  Department of Children and Family Services, or the Department

                                  12

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 1  of Juvenile Justice or to be employed or used by such

 2  contractor or licensee in a position subject to background

 3  screening in accordance with chapter 435 or a sensitive

 4  position having direct contact with children, the

 5  developmentally disabled, the aged, or the elderly as provided

 6  in s. 110.1127(3), s. 112.0455, s. 381.60225, s. 383.305, s.

 7  390.015, s. 393.063(15), s. 394.4572(1), s. 394.875, s.

 8  395.0055, s. 395.0199, s. 397.451, s. 402.302(3), s.

 9  402.313(3), s. 409.175(2)(i), s. 415.102(4), s. 415.103, s.

10  483.101, s. 483.30, s. 985.407, or chapter 400; or

11         6.  Is seeking to be employed or licensed by the Office

12  of Teacher Education, Certification, Staff Development, and

13  Professional Practices of the Department of Education, any

14  district school board, or any local governmental entity which

15  licenses child care facilities.

16         Section 5.  For the purpose of incorporating the

17  amendment made by this act to section 435.04, Florida

18  Statutes, in references thereto, subsection (1) of section

19  39.821, Florida Statutes, is reenacted to read:

20         39.821  Qualifications of guardians ad litem.--

21         (1)  Because of the special trust or responsibility

22  placed in a guardian ad litem, the Guardian Ad Litem Program

23  may use any private funds collected by the program, or any

24  state funds so designated, to conduct a security background

25  investigation before certifying a volunteer to serve. A

26  security background investigation must include, but need not

27  be limited to, employment history checks, checks of

28  references, local criminal records checks through local law

29  enforcement agencies, and statewide criminal records checks

30  through the Department of Law Enforcement. Upon request, an

31  employer shall furnish a copy of the personnel record for the

                                  13

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 1  employee or former employee who is the subject of a security

 2  background investigation conducted under this section. The

 3  information contained in the personnel record may include, but

 4  need not be limited to, disciplinary matters and the reason

 5  why the employee was terminated from employment. An employer

 6  who releases a personnel record for purposes of a security

 7  background investigation is presumed to have acted in good

 8  faith and is not liable for information contained in the

 9  record without a showing that the employer maliciously

10  falsified the record. A security background investigation

11  conducted under this section must ensure that a person is not

12  certified as a guardian ad litem if the person has been

13  convicted of, regardless of adjudication, or entered a plea of

14  nolo contendere or guilty to, any offense prohibited under the

15  provisions of the Florida Statutes specified in s. 435.04(2)

16  or under any similar law in another jurisdiction. Before

17  certifying an applicant to serve as a guardian ad litem, the

18  chief judge of the circuit court may request a federal

19  criminal records check of the applicant through the Federal

20  Bureau of Investigation. In analyzing and evaluating the

21  information obtained in the security background investigation,

22  the program must give particular emphasis to past activities

23  involving children, including, but not limited to,

24  child-related criminal offenses or child abuse. The program

25  has the sole discretion in determining whether to certify a

26  person based on his or her security background investigation.

27  The information collected pursuant to the security background

28  investigation is confidential and exempt from s. 119.07(1).

29         Section 6.  For the purpose of incorporating the

30  amendment made by this act to section 435.03, Florida

31  Statutes, in references thereto, paragraph (g) of subsection

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 1  (1) of section 400.414, Florida Statutes, is reenacted to

 2  read:

 3         400.414  Denial, revocation, or suspension of license;

 4  imposition of administrative fine; grounds.--

 5         (1)  The agency may deny, revoke, or suspend any

 6  license issued under this part, or impose an administrative

 7  fine in the manner provided in chapter 120, for any of the

 8  following actions by an assisted living facility, for the

 9  actions of any person subject to level 2 background screening

10  under s. 400.4174, or for the actions of any facility

11  employee:

12         (g)  A determination that an employee, volunteer,

13  administrator, or owner, or person who otherwise has access to

14  the residents of a facility does not meet the criteria

15  specified in s. 435.03(2), and the owner or administrator has

16  not taken action to remove the person. Exemptions from

17  disqualification may be granted as set forth in s. 435.07. No

18  administrative action may be taken against the facility if the

19  person is granted an exemption.

20  

21  Administrative proceedings challenging agency action under

22  this subsection shall be reviewed on the basis of the facts

23  and conditions that resulted in the agency action.

24         Section 7.  This act shall take effect upon becoming a

25  law.

26  

27  

28  

29  

30  

31  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides additional criminal offenses and deletes an
      offense that would disqualify a person subject to level 1
 4    and level 2 screening standards from employment.
      Includes the Agency for Health Care Administration to the
 5    list of agencies permitted to receive expunged criminal
      history records and sealed criminal history records.
 6    Provides additional offenses for which a person may not
      lawfully deny or fail to acknowledge an arrest with
 7    respect to an expunged or sealed record.

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                                  16

CODING: Words stricken are deletions; words underlined are additions.

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