October 19, 2018
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       Florida Senate - 2010                                    SB 1974
       
       
       
       By Senator Negron
       
       
       
       
       28-01191B-10                                          20101974__
    1                        A bill to be entitled                      
    2         An act relating to public safety; amending s. 790.065,
    3         F.S.; requiring certain reports to be submitted in an
    4         automated format; deleting provisions relating to
    5         automatic deletion of mental health records under
    6         specified conditions from the Department of Law
    7         Enforcement’s database of such records kept for
    8         purposes of sale and delivery of firearms and
    9         substituting a procedure for petition to obtain
   10         judicial relief from firearm disabilities and, upon
   11         obtaining such relief, the removal of the individual
   12         mental health records from the department’s database;
   13         amending s. 943.05, F.S.; revising who may request
   14         retention of fingerprints submitted to the Department
   15         of Law Enforcement; authorizing retention of
   16         fingerprints in certain circumstances; amending s.
   17         943.12, F.S.; requiring the Criminal Justice Standards
   18         and Training Commission to adopt rules relating to the
   19         maintenance of officers who engage in those
   20         specialized areas found to present a high risk of harm
   21         to the officer or the public at large; requiring the
   22         commission to adopt rules requiring the demonstration
   23         of proficiency in firearms for all law enforcement
   24         officers; amending s. 943.131, F.S.; revising
   25         provisions relating to exemptions from completing a
   26         commission-approved basic recruit training program;
   27         amending s. 943.1395, F.S.; revising provisions
   28         relating to qualifications for certified law
   29         enforcement officers separated from employment for
   30         more than a certain period of time; amending s.
   31         943.17, F.S.; deleting a requirement that correctional
   32         probation officers pass a specified basic skills
   33         examination and assessment instrument before entrance
   34         into the basic recruit training program; amending s.
   35         943.1755, F.S.; authorizing fees for criminal justice
   36         executive training from the Florida Criminal Justice
   37         Executive Institute; providing for the deposit and use
   38         of such fees; amending s. 943.32, F.S.; deleting state
   39         funding eligibility for a locally funded crime
   40         laboratory in Monroe County; providing an effective
   41         date.
   42  
   43  Be It Enacted by the Legislature of the State of Florida:
   44  
   45         Section 1. Paragraph (a) of subsection (2) of section
   46  790.065, Florida Statutes, is amended to read:
   47         790.065 Sale and delivery of firearms.—
   48         (2) Upon receipt of a request for a criminal history record
   49  check, the Department of Law Enforcement shall, during the
   50  licensee’s call or by return call, forthwith:
   51         (a) Review any records available to determine if the
   52  potential buyer or transferee:
   53         1. Has been convicted of a felony and is prohibited from
   54  receipt or possession of a firearm pursuant to s. 790.23;
   55         2. Has been convicted of a misdemeanor crime of domestic
   56  violence, and therefore is prohibited from purchasing a firearm;
   57         3. Has had adjudication of guilt withheld or imposition of
   58  sentence suspended on any felony or misdemeanor crime of
   59  domestic violence unless 3 years have elapsed since probation or
   60  any other conditions set by the court have been fulfilled or
   61  expunction has occurred; or
   62         4. Has been adjudicated mentally defective or has been
   63  committed to a mental institution by a court and as a result is
   64  prohibited by federal law from purchasing a firearm.
   65         a. As used in this subparagraph, “adjudicated mentally
   66  defective” means a determination by a court that a person, as a
   67  result of marked subnormal intelligence, or mental illness,
   68  incompetency, condition, or disease, is a danger to himself or
   69  herself or to others or lacks the mental capacity to contract or
   70  manage his or her own affairs. The phrase includes a judicial
   71  finding of incapacity under s. 744.331(6)(a), an acquittal by
   72  reason of insanity of a person charged with a criminal offense,
   73  and a judicial finding that a criminal defendant is not
   74  competent to stand trial.
   75         b. As used in this subparagraph, “committed to a mental
   76  institution” means involuntary commitment, commitment for mental
   77  defectiveness or mental illness, and commitment for substance
   78  abuse. The phrase includes involuntary inpatient placement as
   79  defined in s. 394.467, involuntary outpatient placement as
   80  defined in s. 394.4655, involuntary assessment and stabilization
   81  under s. 397.6818, and involuntary substance abuse treatment
   82  under s. 397.6957, but does not include a person in a mental
   83  institution for observation or discharged from a mental
   84  institution based upon the initial review by the physician or a
   85  voluntary admission to a mental institution.
   86         c. In order to check for these conditions, the department
   87  shall compile and maintain an automated database of persons who
   88  are prohibited from purchasing a firearm based on court records
   89  of adjudications of mental defectiveness or commitments to
   90  mental institutions. Clerks of court shall submit these records
   91  to the department within 1 month after the rendition of the
   92  adjudication or commitment. Reports shall may be submitted in an
   93  automated format. The reports must, at a minimum, include the
   94  name, along with any known alias or former name, the sex, and
   95  the date of birth of the subject. The department shall delete
   96  any mental health record from the database upon request of an
   97  individual when 5 years have elapsed since the individual’s
   98  restoration to capacity by court order after being adjudicated
   99  an incapacitated person under s. 744.331, or similar laws of any
  100  other state; or, in the case of an individual who was previously
  101  committed to a mental institution under chapter 394, or similar
  102  laws of any other state, when the individual produces a
  103  certificate from a licensed psychiatrist that he or she has not
  104  suffered from disability for at least 5 years prior to the date
  105  of request for removal of the record. When the department has
  106  received a subsequent record of an adjudication of mental
  107  defectiveness or commitment to a mental institution for such
  108  individual, the 5-year timeframe shall be calculated from the
  109  most recent adjudication of incapacitation or commitment.
  110         d. A person who has been adjudicated mentally defective or
  111  committed to a mental institution, as those terms are defined in
  112  this paragraph, may petition the circuit court that made the
  113  adjudication or commitment for relief from the firearm
  114  disabilities imposed by such adjudication or commitment. A copy
  115  of the petition shall be served on the state attorney for the
  116  county in which the person was adjudicated or committed. The
  117  state attorney may object to and present evidence relevant to
  118  the relief sought by the petition. The hearing on the petition
  119  may be open or closed as the petitioner may choose. The
  120  petitioner may present evidence and subpoena witnesses to appear
  121  at the hearing on the petition. The petitioner may confront and
  122  cross-examine witnesses called by the state attorney. A record
  123  of the hearing shall be made by a certified court reporter or by
  124  court-approved electronic means. The court shall make written
  125  findings of fact and conclusions of law on the issues before it
  126  and issue a final order. The court shall grant the relief
  127  requested in the petition if the court finds, based on the
  128  evidence presented with respect to the petitioner’s reputation,
  129  the petitioner’s mental health record and, if applicable,
  130  criminal history record, the circumstances surrounding the
  131  firearm disability, and any other evidence in the record, that
  132  the petitioner will not be likely to act in a manner that is
  133  dangerous to public safety and that granting the relief would
  134  not be contrary to the public interest. If the final order
  135  denies relief, the petitioner may not petition again for relief
  136  from firearm disabilities until 1 year after the date of the
  137  final order. The petitioner may seek judicial review of a final
  138  order denying relief in the district court of appeal having
  139  jurisdiction over the court that issued the order. The review
  140  shall be conducted de novo. Relief from a firearm disability
  141  granted under this sub-subparagraph has no effect on the loss of
  142  civil rights, including firearm rights, for any reason other
  143  than the particular adjudication of mental defectiveness or
  144  commitment to a mental institution from which relief is granted.
  145         e. Upon receipt of proper notice of relief from firearm
  146  disabilities granted under sub-subparagraph d., the department
  147  shall delete any mental health record of the person granted
  148  relief from the automated database of persons who are prohibited
  149  from purchasing a firearm based on court records of
  150  adjudications of mental defectiveness or commitments to mental
  151  institutions.
  152         f.d. The department is authorized to disclose the collected
  153  data to agencies of the Federal Government and other states for
  154  use exclusively in determining the lawfulness of a firearm sale
  155  or transfer. The department is also authorized to disclose any
  156  collected data to the Department of Agriculture and Consumer
  157  Services for purposes of determining eligibility for issuance of
  158  a concealed weapons or concealed firearms license and for
  159  determining whether a basis exists for revoking or suspending a
  160  previously issued license pursuant to s. 790.06(10). When a
  161  potential buyer or transferee appeals a nonapproval based on
  162  these records, the clerks of court and mental institutions
  163  shall, upon request by the department, provide information to
  164  help determine whether the potential buyer or transferee is the
  165  same person as the subject of the record. Photographs and any
  166  other data that could confirm or negate identity must be made
  167  available to the department for such purposes, notwithstanding
  168  any other provision of state law to the contrary. Any such
  169  information that is made confidential or exempt from disclosure
  170  by law shall retain such confidential or exempt status when
  171  transferred to the department.
  172         Section 2. Paragraphs (g) and (h) of subsection (2) of
  173  section 943.05, Florida Statutes, are amended, and subsection
  174  (4) is added to that section, to read:
  175         943.05 Criminal Justice Information Program; duties; crime
  176  reports.—
  177         (2) The program shall:
  178         (g) Upon official written request from the agency executive
  179  director or secretary or from his or her designee, or from
  180  qualified entities participating in the volunteer and employee
  181  criminal history screening system under s. 943.0542, or as
  182  otherwise required As authorized by law, retain fingerprints
  183  submitted by criminal and noncriminal justice agencies to the
  184  department for a criminal history background screening in a
  185  manner provided by rule and enter the fingerprints in the
  186  statewide automated fingerprint identification system authorized
  187  by paragraph (b). Such fingerprints shall thereafter be
  188  available for all purposes and uses authorized for arrest
  189  fingerprint cards entered into the statewide automated
  190  fingerprint identification system pursuant to s. 943.051.
  191         (h)1. For each agency or qualified entity that officially
  192  requests retention of fingerprints or for which retention is
  193  otherwise required As authorized by law, search all arrest
  194  fingerprint submissions cards received under s. 943.051 against
  195  the fingerprints retained in the statewide automated fingerprint
  196  identification system under paragraph (g). Any arrest record
  197  that is identified with the retained fingerprints of a person
  198  subject to background screening as provided in paragraph (g)
  199  shall be reported to the appropriate agency or qualified entity.
  200         2. To Agencies may participate in this search process,
  201  agencies or qualified entities must notify each person
  202  fingerprinted that his or her fingerprints will be retained, pay
  203  by payment of an annual fee to the department, and inform by
  204  informing the department of any change in the affiliation,
  205  employment, or contractual status or place of affiliation,
  206  employment, or contracting of each person the persons whose
  207  fingerprints are retained under paragraph (g). The department
  208  shall adopt a rule setting the amount of the annual fee to be
  209  imposed upon each participating agency or qualified entity for
  210  performing these searches and establishing the procedures for
  211  the retention of fingerprints and the dissemination of search
  212  results. The fee may be borne by the agency, qualified entity,
  213  or person subject to fingerprint retention or as otherwise
  214  provided by law. Fees may be waived or reduced by the executive
  215  director for good cause shown. Consistent with the recognition
  216  of criminal justice agencies expressed in s. 943.053(3), these
  217  services will be provided to criminal justice agencies for
  218  criminal justice purposes free of charge.
  219         (4) Upon notification that a federal fingerprint retention
  220  program is in effect, and provided that the department is funded
  221  and equipped to participate in such a program, the department
  222  shall, when a state and national criminal history record check
  223  and retention of submitted prints are authorized or required by
  224  law, retain the fingerprints as provided in paragraphs (2)(g)
  225  and (h) and advise the Federal Bureau of Investigation to retain
  226  the fingerprints at the national level for searching against
  227  arrest fingerprint submissions received at the national level.
  228         Section 3. Subsection (16) of section 943.12, Florida
  229  Statutes, is amended to read:
  230         943.12 Powers, duties, and functions of the commission.—The
  231  commission shall:
  232         (16) Adopt Promulgate rules for the certification,
  233  maintenance, and discipline of officers who engage in those
  234  specialized areas found to present a high risk of harm to the
  235  officer or the public at large and which would in turn increase
  236  the potential liability of an employing agency. The commission
  237  shall adopt rules requiring the demonstration of proficiency in
  238  firearms for all law enforcement officers. The commission shall
  239  by rule include the frequency of demonstration of proficiency
  240  with firearms and the consequences for officers failing to
  241  demonstrate proficiency with firearms.
  242         Section 4. Subsection (2) of section 943.131, Florida
  243  Statutes, is amended to read:
  244         943.131 Temporary employment or appointment; minimum basic
  245  recruit training exemption.—
  246         (2) If an applicant seeks an exemption from completing a
  247  commission-approved basic recruit training program, the
  248  employing agency or criminal justice selection center must
  249  verify that the applicant has successfully completed a
  250  comparable basic recruit training program for the discipline in
  251  which the applicant is seeking certification in another state or
  252  for the Federal Government or a previous Florida basic recruit
  253  training program. Further, the employing agency or criminal
  254  justice selection center must verify that the applicant has
  255  served as a full-time sworn officer in another state or for the
  256  Federal Government for at least 1 year provided there is no more
  257  than an 8-year break in employment or was a previously certified
  258  Florida officer provided there is no more than an 8-year break
  259  in employment, as measured from the separation date of the most
  260  recent qualifying employment to the time a complete application
  261  is submitted for an exemption under this section. When the
  262  employing agency or criminal justice selection center obtains
  263  written documentation regarding the applicant’s criminal justice
  264  experience, the documentation must be submitted to the
  265  commission. The commission shall adopt rules that establish
  266  criteria and procedures to determine if the applicant is exempt
  267  from completing the commission-approved basic recruit training
  268  program and, upon making a determination, shall notify the
  269  employing agency or criminal justice selection center. An
  270  applicant who is exempt from completing the commission-approved
  271  basic recruit training program must demonstrate proficiency in
  272  the high-liability areas, as defined by commission rule, and
  273  must complete the requirements of s. 943.13(10) within 1 year
  274  after receiving an exemption. If the proficiencies and
  275  requirements of s. 943.13(10) are not met within the 1 year, the
  276  applicant must seek an additional exemption pursuant to the
  277  requirements of this subsection complete a commission-approved
  278  basic recruit training program, as required by the commission by
  279  rule. Except as provided in subsection (1), before the employing
  280  agency may employ or appoint the applicant as an officer, the
  281  applicant must meet the minimum qualifications described in s.
  282  943.13(1)-(8), and must fulfill the requirements of s.
  283  943.13(10).
  284         Section 5. Subsection (3) of section 943.1395, Florida
  285  Statutes, is amended to read:
  286         943.1395 Certification for employment or appointment;
  287  concurrent certification; reemployment or reappointment;
  288  inactive status; revocation; suspension; investigation.—
  289         (3) Any certified officer who has separated from employment
  290  or appointment and who is not reemployed or reappointed by an
  291  employing agency within 4 years after the date of separation
  292  must meet the minimum qualifications described in s. 943.13,
  293  except for the requirement found in s. 943.13(9). Further, such
  294  officer must complete any training required by the commission by
  295  rule in compliance with s. 943.131(2). Any such officer who
  296  fails to comply with the requirements provided in s. 943.131(2)
  297  is not reemployed or reappointed by an employing agency within 8
  298  years after the date of separation must meet the minimum
  299  qualifications described in s. 943.13, to include the
  300  requirement of s. 943.13(9).
  301         Section 6. Paragraph (g) of subsection (1) of section
  302  943.17, Florida Statutes, is amended to read:
  303         943.17 Basic recruit, advanced, and career development
  304  training programs; participation; cost; evaluation.—The
  305  commission shall, by rule, design, implement, maintain,
  306  evaluate, and revise entry requirements and job-related
  307  curricula and performance standards for basic recruit, advanced,
  308  and career development training programs and courses. The rules
  309  shall include, but are not limited to, a methodology to assess
  310  relevance of the subject matter to the job, student performance,
  311  and instructor competency.
  312         (1) The commission shall:
  313         (g) Assure that entrance into the basic recruit training
  314  program for law enforcement and, correctional, and correctional
  315  probation officers be limited to those who have passed a basic
  316  skills examination and assessment instrument, based on a job
  317  task analysis in each discipline and adopted by the commission.
  318         Section 7. Subsection (4) of section 943.1755, Florida
  319  Statutes, is amended to read:
  320         943.1755 Florida Criminal Justice Executive Institute.—
  321         (4) The policy board shall establish administrative
  322  procedures and operational guidelines necessary to ensure that
  323  criminal justice executive training needs are identified and met
  324  through the delivery of quality instruction. The policy board
  325  may authorize fees to be collected for delivering criminal
  326  justice executive training. Fees for criminal justice executive
  327  training collected pursuant to this subsection shall be
  328  deposited in the Criminal Justice Standards and Training Trust
  329  Fund and used solely for payment of necessary and proper
  330  expenses incurred by the department for criminal justice
  331  executive training.
  332         Section 8. Section 943.32, Florida Statutes, is amended to
  333  read:
  334         943.32 Statewide criminal analysis laboratory system.—There
  335  is established a statewide criminal analysis laboratory system
  336  to be composed of:
  337         (1) The state-operated laboratories under the jurisdiction
  338  of the Department of Law Enforcement in Ft. Myers, Jacksonville,
  339  Pensacola, Orlando, Tallahassee, Tampa, and such other areas of
  340  the state as may be necessary;
  341         (2) The existing locally funded laboratories in Broward,
  342  Indian River, Miami-Dade, Monroe, Palm Beach, and Pinellas
  343  Counties, specifically designated in s. 943.35 to be eligible
  344  for state matching funds; and
  345         (3) Such other laboratories as render criminal analysis
  346  laboratory services to criminal justice agencies in the state.
  347         Section 9. This act shall take effect July 1, 2010.

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