Florida Senate - 2010                             CS for SB 1974
       By the Committee on Judiciary; and Senator Negron
       590-03796-10                                          20101974c1
    1                        A bill to be entitled                      
    2         An act relating to the Department of Law Enforcement;
    3         amending s. 790.065, F.S.; requiring certain reports
    4         to be submitted in an automated format; deleting
    5         provisions relating to automatic deletion of mental
    6         health records under specified conditions from the
    7         Department of Law Enforcement’s database of such
    8         records kept for purposes of sale and delivery of
    9         firearms and substituting a procedure for petition to
   10         obtain judicial relief from firearm disabilities and,
   11         upon obtaining such relief, the removal of the
   12         individual mental health records from the department’s
   13         database; amending s. 943.05, F.S.; revising who may
   14         request retention of fingerprints submitted to the
   15         Department of Law Enforcement; authorizing retention
   16         of 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.
   43  Be It Enacted by the Legislature of the State of Florida:
   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) when such change
  208  removes or eliminates the agency or qualified entity’s basis or
  209  need for receiving reports of any arrest of that person, so that
  210  the agency or qualified entity will not be obligated to pay the
  211  upcoming annual fee for the retention and searching of that
  212  person’s fingerprints to the department. The department shall
  213  adopt a rule setting the amount of the annual fee to be imposed
  214  upon each participating agency or qualified entity for
  215  performing these searches and establishing the procedures for
  216  the retention of fingerprints and the dissemination of search
  217  results. The fee may be borne by the agency, qualified entity,
  218  or person subject to fingerprint retention or as otherwise
  219  provided by law. Fees may be waived or reduced by the executive
  220  director for good cause shown. Consistent with the recognition
  221  of criminal justice agencies expressed in s. 943.053(3), these
  222  services will be provided to criminal justice agencies for
  223  criminal justice purposes free of charge.
  224         (4) Upon notification that a federal fingerprint retention
  225  program is in effect, and provided that the department is funded
  226  and equipped to participate in such a program, the department
  227  shall, when a state and national criminal history record check
  228  and retention of submitted prints are authorized or required by
  229  law, retain the fingerprints as provided in paragraphs (2)(g)
  230  and (h) and advise the Federal Bureau of Investigation to retain
  231  the fingerprints at the national level for searching against
  232  arrest fingerprint submissions received at the national level.
  233         Section 3. Subsection (16) of section 943.12, Florida
  234  Statutes, is amended to read:
  235         943.12 Powers, duties, and functions of the commission.—The
  236  commission shall:
  237         (16) Adopt Promulgate rules for the certification,
  238  maintenance, and discipline of officers who engage in those
  239  specialized areas found to present a high risk of harm to the
  240  officer or the public at large and which would in turn increase
  241  the potential liability of an employing agency. The commission
  242  shall adopt rules requiring the demonstration of proficiency in
  243  firearms for all law enforcement officers. The commission shall
  244  by rule include the frequency of demonstration of proficiency
  245  with firearms and the consequences for officers failing to
  246  demonstrate proficiency with firearms.
  247         Section 4. Subsection (2) of section 943.131, Florida
  248  Statutes, is amended to read:
  249         943.131 Temporary employment or appointment; minimum basic
  250  recruit training exemption.—
  251         (2) If an applicant seeks an exemption from completing a
  252  commission-approved basic recruit training program, the
  253  employing agency or criminal justice selection center must
  254  verify that the applicant has successfully completed a
  255  comparable basic recruit training program for the discipline in
  256  which the applicant is seeking certification in another state or
  257  for the Federal Government or a previous Florida basic recruit
  258  training program. Further, the employing agency or criminal
  259  justice selection center must verify that the applicant has
  260  served as a full-time sworn officer in another state or for the
  261  Federal Government for at least 1 year provided there is no more
  262  than an 8-year break in employment or was a previously certified
  263  Florida officer provided there is no more than an 8-year break
  264  in employment, as measured from the separation date of the most
  265  recent qualifying employment to the time a complete application
  266  is submitted for an exemption under this section. When the
  267  employing agency or criminal justice selection center obtains
  268  written documentation regarding the applicant’s criminal justice
  269  experience, the documentation must be submitted to the
  270  commission. The commission shall adopt rules that establish
  271  criteria and procedures to determine if the applicant is exempt
  272  from completing the commission-approved basic recruit training
  273  program and, upon making a determination, shall notify the
  274  employing agency or criminal justice selection center. An
  275  applicant who is exempt from completing the commission-approved
  276  basic recruit training program must demonstrate proficiency in
  277  the high-liability areas, as defined by commission rule, and
  278  must complete the requirements of s. 943.13(10) within 1 year
  279  after receiving an exemption. If the proficiencies and
  280  requirements of s. 943.13(10) are not met within the 1 year, the
  281  applicant must seek an additional exemption pursuant to the
  282  requirements of this subsection complete a commission-approved
  283  basic recruit training program, as required by the commission by
  284  rule. Except as provided in subsection (1), before the employing
  285  agency may employ or appoint the applicant as an officer, the
  286  applicant must meet the minimum qualifications described in s.
  287  943.13(1)-(8), and must fulfill the requirements of s.
  288  943.13(10).
  289         Section 5. Subsection (3) of section 943.1395, Florida
  290  Statutes, is amended to read:
  291         943.1395 Certification for employment or appointment;
  292  concurrent certification; reemployment or reappointment;
  293  inactive status; revocation; suspension; investigation.—
  294         (3) Any certified officer who has separated from employment
  295  or appointment and who is not reemployed or reappointed by an
  296  employing agency within 4 years after the date of separation
  297  must meet the minimum qualifications described in s. 943.13,
  298  except for the requirement found in s. 943.13(9). Further, such
  299  officer must complete any training required by the commission by
  300  rule in compliance with s. 943.131(2). Any such officer who
  301  fails to comply with the requirements provided in s. 943.131(2)
  302  is not reemployed or reappointed by an employing agency within 8
  303  years after the date of separation must meet the minimum
  304  qualifications described in s. 943.13, to include the
  305  requirement of s. 943.13(9).
  306         Section 6. Paragraph (g) of subsection (1) of section
  307  943.17, Florida Statutes, is amended to read:
  308         943.17 Basic recruit, advanced, and career development
  309  training programs; participation; cost; evaluation.—The
  310  commission shall, by rule, design, implement, maintain,
  311  evaluate, and revise entry requirements and job-related
  312  curricula and performance standards for basic recruit, advanced,
  313  and career development training programs and courses. The rules
  314  shall include, but are not limited to, a methodology to assess
  315  relevance of the subject matter to the job, student performance,
  316  and instructor competency.
  317         (1) The commission shall:
  318         (g) Assure that entrance into the basic recruit training
  319  program for law enforcement and, correctional, and correctional
  320  probation officers be limited to those who have passed a basic
  321  skills examination and assessment instrument, based on a job
  322  task analysis in each discipline and adopted by the commission.
  323         Section 7. Subsection (4) of section 943.1755, Florida
  324  Statutes, is amended to read:
  325         943.1755 Florida Criminal Justice Executive Institute.—
  326         (4) The policy board shall establish administrative
  327  procedures and operational guidelines necessary to ensure that
  328  criminal justice executive training needs are identified and met
  329  through the delivery of quality instruction. The policy board
  330  may authorize fees to be collected for delivering criminal
  331  justice executive training. Fees for criminal justice executive
  332  training collected pursuant to this subsection shall be
  333  deposited in the Criminal Justice Standards and Training Trust
  334  Fund and used solely for payment of necessary and proper
  335  expenses incurred by the department for criminal justice
  336  executive training.
  337         Section 8. Section 943.32, Florida Statutes, is amended to
  338  read:
  339         943.32 Statewide criminal analysis laboratory system.—There
  340  is established a statewide criminal analysis laboratory system
  341  to be composed of:
  342         (1) The state-operated laboratories under the jurisdiction
  343  of the Department of Law Enforcement in Ft. Myers, Jacksonville,
  344  Pensacola, Orlando, Tallahassee, Tampa, and such other areas of
  345  the state as may be necessary;
  346         (2) The existing locally funded laboratories in Broward,
  347  Indian River, Miami-Dade, Monroe, Palm Beach, and Pinellas
  348  Counties, specifically designated in s. 943.35 to be eligible
  349  for state matching funds; and
  350         (3) Such other laboratories as render criminal analysis
  351  laboratory services to criminal justice agencies in the state.
  352         Section 9. This act shall take effect July 1, 2010.

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