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       Florida Senate - 2010                      CS for CS for SB 1974
       By the Committees on Criminal and Civil Justice Appropriations;
       and Judiciary; and Senator Negron
       604-04841-10                                          20101974c2
    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
   14         provisions relating to the Criminal Justice
   15         Information Program under the Department of Law
   16         Enforcement; authorizing agencies to request the
   17         retention of certain fingerprints by the department;
   18         providing for rulemaking to require employers to keep
   19         the agencies informed of any change in the
   20         affiliation, employment, or contractual status of each
   21         person whose fingerprints are retained in certain
   22         circumstances; providing departmental duties upon
   23         notification that a federal fingerprint retention
   24         program is in effect; amending s. 943.053, F.S.;
   25         removing obsolete references relating to the
   26         dissemination of criminal justice information;
   27         amending s. 943.12, F.S.; requiring the Criminal
   28         Justice Standards and Training Commission to adopt
   29         rules relating to the maintenance of officers who
   30         engage in those specialized areas found to present a
   31         high risk of harm to the officer or the public at
   32         large; requiring the commission to adopt rules
   33         requiring the demonstration of proficiency in firearms
   34         for all law enforcement officers; amending s. 943.131,
   35         F.S.; revising provisions relating to exemptions from
   36         completing a commission-approved basic recruit
   37         training program; amending s. 943.1395, F.S.; revising
   38         provisions relating to qualifications for certified
   39         law enforcement officers separated from employment for
   40         more than a certain period of time; amending s.
   41         943.17, F.S.; deleting a requirement that correctional
   42         probation officers pass a specified basic skills
   43         examination and assessment instrument before entrance
   44         into the basic recruit training program; amending s.
   45         943.32, F.S.; deleting state funding eligibility for a
   46         locally funded crime laboratory in Monroe County;
   47         providing an effective date.
   49  Be It Enacted by the Legislature of the State of Florida:
   51         Section 1. Paragraph (a) of subsection (2) of section
   52  790.065, Florida Statutes, is amended to read:
   53         790.065 Sale and delivery of firearms.—
   54         (2) Upon receipt of a request for a criminal history record
   55  check, the Department of Law Enforcement shall, during the
   56  licensee’s call or by return call, forthwith:
   57         (a) Review any records available to determine if the
   58  potential buyer or transferee:
   59         1. Has been convicted of a felony and is prohibited from
   60  receipt or possession of a firearm pursuant to s. 790.23;
   61         2. Has been convicted of a misdemeanor crime of domestic
   62  violence, and therefore is prohibited from purchasing a firearm;
   63         3. Has had adjudication of guilt withheld or imposition of
   64  sentence suspended on any felony or misdemeanor crime of
   65  domestic violence unless 3 years have elapsed since probation or
   66  any other conditions set by the court have been fulfilled or
   67  expunction has occurred; or
   68         4. Has been adjudicated mentally defective or has been
   69  committed to a mental institution by a court and as a result is
   70  prohibited by federal law from purchasing a firearm.
   71         a. As used in this subparagraph, “adjudicated mentally
   72  defective” means a determination by a court that a person, as a
   73  result of marked subnormal intelligence, or mental illness,
   74  incompetency, condition, or disease, is a danger to himself or
   75  herself or to others or lacks the mental capacity to contract or
   76  manage his or her own affairs. The phrase includes a judicial
   77  finding of incapacity under s. 744.331(6)(a), an acquittal by
   78  reason of insanity of a person charged with a criminal offense,
   79  and a judicial finding that a criminal defendant is not
   80  competent to stand trial.
   81         b. As used in this subparagraph, “committed to a mental
   82  institution” means involuntary commitment, commitment for mental
   83  defectiveness or mental illness, and commitment for substance
   84  abuse. The phrase includes involuntary inpatient placement as
   85  defined in s. 394.467, involuntary outpatient placement as
   86  defined in s. 394.4655, involuntary assessment and stabilization
   87  under s. 397.6818, and involuntary substance abuse treatment
   88  under s. 397.6957, but does not include a person in a mental
   89  institution for observation or discharged from a mental
   90  institution based upon the initial review by the physician or a
   91  voluntary admission to a mental institution.
   92         c. In order to check for these conditions, the department
   93  shall compile and maintain an automated database of persons who
   94  are prohibited from purchasing a firearm based on court records
   95  of adjudications of mental defectiveness or commitments to
   96  mental institutions. Clerks of court shall submit these records
   97  to the department within 1 month after the rendition of the
   98  adjudication or commitment. Reports shall may be submitted in an
   99  automated format. The reports must, at a minimum, include the
  100  name, along with any known alias or former name, the sex, and
  101  the date of birth of the subject. The department shall delete
  102  any mental health record from the database upon request of an
  103  individual when 5 years have elapsed since the individual’s
  104  restoration to capacity by court order after being adjudicated
  105  an incapacitated person under s. 744.331, or similar laws of any
  106  other state; or, in the case of an individual who was previously
  107  committed to a mental institution under chapter 394, or similar
  108  laws of any other state, when the individual produces a
  109  certificate from a licensed psychiatrist that he or she has not
  110  suffered from disability for at least 5 years prior to the date
  111  of request for removal of the record. When the department has
  112  received a subsequent record of an adjudication of mental
  113  defectiveness or commitment to a mental institution for such
  114  individual, the 5-year timeframe shall be calculated from the
  115  most recent adjudication of incapacitation or commitment.
  116         d. A person who has been adjudicated mentally defective or
  117  committed to a mental institution, as those terms are defined in
  118  this paragraph, may petition the circuit court that made the
  119  adjudication or commitment for relief from the firearm
  120  disabilities imposed by such adjudication or commitment. A copy
  121  of the petition shall be served on the state attorney for the
  122  county in which the person was adjudicated or committed. The
  123  state attorney may object to and present evidence relevant to
  124  the relief sought by the petition. The hearing on the petition
  125  may be open or closed as the petitioner may choose. The
  126  petitioner may present evidence and subpoena witnesses to appear
  127  at the hearing on the petition. The petitioner may confront and
  128  cross-examine witnesses called by the state attorney. A record
  129  of the hearing shall be made by a certified court reporter or by
  130  court-approved electronic means. The court shall make written
  131  findings of fact and conclusions of law on the issues before it
  132  and issue a final order. The court shall grant the relief
  133  requested in the petition if the court finds, based on the
  134  evidence presented with respect to the petitioner’s reputation,
  135  the petitioner’s mental health record and, if applicable,
  136  criminal history record, the circumstances surrounding the
  137  firearm disability, and any other evidence in the record, that
  138  the petitioner will not be likely to act in a manner that is
  139  dangerous to public safety and that granting the relief would
  140  not be contrary to the public interest. If the final order
  141  denies relief, the petitioner may not petition again for relief
  142  from firearm disabilities until 1 year after the date of the
  143  final order. The petitioner may seek judicial review of a final
  144  order denying relief in the district court of appeal having
  145  jurisdiction over the court that issued the order. The review
  146  shall be conducted de novo. Relief from a firearm disability
  147  granted under this sub-subparagraph has no effect on the loss of
  148  civil rights, including firearm rights, for any reason other
  149  than the particular adjudication of mental defectiveness or
  150  commitment to a mental institution from which relief is granted.
  151         e. Upon receipt of proper notice of relief from firearm
  152  disabilities granted under sub-subparagraph d., the department
  153  shall delete any mental health record of the person granted
  154  relief from the automated database of persons who are prohibited
  155  from purchasing a firearm based on court records of
  156  adjudications of mental defectiveness or commitments to mental
  157  institutions.
  158         f.d. The department is authorized to disclose the collected
  159  data to agencies of the Federal Government and other states for
  160  use exclusively in determining the lawfulness of a firearm sale
  161  or transfer. The department is also authorized to disclose any
  162  collected data to the Department of Agriculture and Consumer
  163  Services for purposes of determining eligibility for issuance of
  164  a concealed weapons or concealed firearms license and for
  165  determining whether a basis exists for revoking or suspending a
  166  previously issued license pursuant to s. 790.06(10). When a
  167  potential buyer or transferee appeals a nonapproval based on
  168  these records, the clerks of court and mental institutions
  169  shall, upon request by the department, provide information to
  170  help determine whether the potential buyer or transferee is the
  171  same person as the subject of the record. Photographs and any
  172  other data that could confirm or negate identity must be made
  173  available to the department for such purposes, notwithstanding
  174  any other provision of state law to the contrary. Any such
  175  information that is made confidential or exempt from disclosure
  176  by law shall retain such confidential or exempt status when
  177  transferred to the department.
  178         Section 2. Paragraphs (g) and (h) of subsection (2) of
  179  section 943.05, Florida Statutes, are amended, and subsection
  180  (4) is added to that section, to read:
  181         943.05 Criminal Justice Information Program; duties; crime
  182  reports.—
  183         (2) The program shall:
  184         (g) Upon official written request, and subject to the
  185  department having sufficient funds and equipment to participate
  186  in such a request, from the agency executive director or
  187  secretary, or from his or her designee, or from qualified
  188  entities participating in the volunteer and employee criminal
  189  history screening system under s. 943.0542, or as otherwise
  190  required As authorized by law, retain fingerprints submitted by
  191  criminal and noncriminal justice agencies to the department for
  192  a criminal history background screening in a manner provided by
  193  rule and enter the fingerprints in the statewide automated
  194  fingerprint identification system authorized by paragraph (b).
  195  Such fingerprints shall thereafter be available for all purposes
  196  and uses authorized for arrest fingerprint submissions cards
  197  entered into the statewide automated fingerprint identification
  198  system pursuant to s. 943.051.
  199         (h)1.For each agency or qualified entity that officially
  200  requests retention of fingerprints or for which retention is
  201  otherwise required As authorized by law, search all arrest
  202  fingerprint submissions cards received under s. 943.051 against
  203  the fingerprints retained in the statewide automated fingerprint
  204  identification system under paragraph (g).
  205         1. Any arrest record that is identified with the retained
  206  fingerprints of a person subject to background screening as
  207  provided in paragraph (g) shall be reported to the appropriate
  208  agency or qualified entity.
  209         2. To Agencies may participate in this search process,
  210  agencies or qualified entities must notify each person
  211  fingerprinted that his or her fingerprints will be retained, pay
  212  by payment of an annual fee to the department, and inform by
  213  informing the department of any change in the affiliation,
  214  employment, or contractual status or place of affiliation,
  215  employment, or contracting of each person the persons whose
  216  fingerprints are retained under paragraph (g) when such change
  217  removes or eliminates the agency or qualified entity’s basis or
  218  need for receiving reports of any arrest of that person, so that
  219  the agency or qualified entity will not be obligated to pay the
  220  upcoming annual fee for the retention and searching of that
  221  person’s fingerprints to the department. The department shall
  222  adopt a rule setting the amount of the annual fee to be imposed
  223  upon each participating agency or qualified entity for
  224  performing these searches and establishing the procedures for
  225  the retention of fingerprints and the dissemination of search
  226  results. The fee may be borne by the agency, qualified entity,
  227  or person subject to fingerprint retention or as otherwise
  228  provided by law. Fees may be waived or reduced by the executive
  229  director for good cause shown. Consistent with the recognition
  230  of criminal justice agencies expressed in s. 943.053(3), these
  231  services will be provided to criminal justice agencies for
  232  criminal justice purposes free of charge.
  233         3. Agencies that participate in the fingerprint retention
  234  and search process may adopt rules pursuant to ss. 120.536(1)
  235  and 120.54 to require employers to keep the agency informed of
  236  any change in the affiliation, employment, or contractual status
  237  of each person whose fingerprints are retained under paragraph
  238  (g) when such change removes or eliminates the agency’s basis or
  239  need for receiving reports of any arrest of that person, so that
  240  the agency will not be obligated to pay the upcoming annual fee
  241  for the retention and search of that person’s fingerprints to
  242  the department.
  243         (4) Upon notification that a federal fingerprint retention
  244  program is in effect, and subject to the department being funded
  245  and equipped to participate in such a program, the department
  246  shall, when state and national criminal history records checks
  247  and retention of submitted prints are authorized or required by
  248  law, retain the fingerprints as provided in paragraphs (2)(g)
  249  and (h) and advise the Federal Bureau of Investigation to retain
  250  the fingerprints at the national level for searching against
  251  arrest fingerprint submissions received at the national level.
  252         Section 3. Subsections (6) and (11) of section 943.053,
  253  Florida Statutes, are amended to read:
  254         943.053 Dissemination of criminal justice information;
  255  fees.—
  256         (6) Notwithstanding any other provision of law, the
  257  department shall provide to the Florida Department of Revenue
  258  Child Support Enforcement access to Florida criminal history
  259  records which are not exempt from disclosure under chapter 119,
  260  and to such information as may be lawfully available from other
  261  states via the National Law Enforcement Telecommunications
  262  System, for the purpose of locating subjects who owe or
  263  potentially owe support, as defined in s. 409.2554, or to whom
  264  such obligation is owed pursuant to Title IV-D of the Social
  265  Security Act. Such information may be provided to child support
  266  enforcement authorities in other states for these specific
  267  purposes.
  268         (11) A criminal justice agency that is authorized under
  269  federal rules or law to conduct a criminal history background
  270  check on an agency employee who is not certified by the Criminal
  271  Justice Standards and Training Commission under s. 943.12 may
  272  submit to the department the fingerprints of the noncertified
  273  employee to obtain state and national criminal history
  274  information. Effective January 15, 2007, The fingerprints
  275  submitted shall be retained and entered in the statewide
  276  automated fingerprint identification system authorized by s.
  277  943.05 and shall be available for all purposes and uses
  278  authorized for arrest fingerprint submissions cards entered in
  279  the statewide automated fingerprint identification system
  280  pursuant to s. 943.051. The department shall search all arrest
  281  fingerprint submissions cards received pursuant to s. 943.051
  282  against the fingerprints retained in the statewide automated
  283  fingerprint identification system pursuant to this section. In
  284  addition to all purposes and uses authorized for arrest
  285  fingerprint submissions cards for which submitted fingerprints
  286  may be used, any arrest record that is identified with the
  287  retained employee fingerprints must be reported to the
  288  submitting employing agency.
  289         Section 4. Subsection (16) of section 943.12, Florida
  290  Statutes, is amended to read:
  291         943.12 Powers, duties, and functions of the commission.—The
  292  commission shall:
  293         (16) Adopt Promulgate rules for the certification,
  294  maintenance, and discipline of officers who engage in those
  295  specialized areas found to present a high risk of harm to the
  296  officer or the public at large and which would in turn increase
  297  the potential liability of an employing agency. The commission
  298  shall adopt rules requiring the demonstration of proficiency in
  299  firearms for all law enforcement officers. The commission shall
  300  by rule include the frequency of demonstration of proficiency
  301  with firearms and the consequences for officers failing to
  302  demonstrate proficiency with firearms.
  303         Section 5. Subsection (2) of section 943.131, Florida
  304  Statutes, is amended to read:
  305         943.131 Temporary employment or appointment; minimum basic
  306  recruit training exemption.—
  307         (2) If an applicant seeks an exemption from completing a
  308  commission-approved basic recruit training program, the
  309  employing agency or criminal justice selection center must
  310  verify that the applicant has successfully completed a
  311  comparable basic recruit training program for the discipline in
  312  which the applicant is seeking certification in another state or
  313  for the Federal Government or a previous Florida basic recruit
  314  training program. Further, the employing agency or criminal
  315  justice selection center must verify that the applicant has
  316  served as a full-time sworn officer in another state or for the
  317  Federal Government for at least 1 year provided there is no more
  318  than an 8-year break in employment or was a previously certified
  319  Florida officer provided there is no more than an 8-year break
  320  in employment, as measured from the separation date of the most
  321  recent qualifying employment to the time a complete application
  322  is submitted for an exemption under this section. When the
  323  employing agency or criminal justice selection center obtains
  324  written documentation regarding the applicant’s criminal justice
  325  experience, the documentation must be submitted to the
  326  commission. The commission shall adopt rules that establish
  327  criteria and procedures to determine if the applicant is exempt
  328  from completing the commission-approved basic recruit training
  329  program and, upon making a determination, shall notify the
  330  employing agency or criminal justice selection center. An
  331  applicant who is exempt from completing the commission-approved
  332  basic recruit training program must demonstrate proficiency in
  333  the high-liability areas, as defined by commission rule, and
  334  must complete the requirements of s. 943.13(10) within 1 year
  335  after receiving an exemption. If the proficiencies and
  336  requirements of s. 943.13(10) are not met within the 1 year, the
  337  applicant must seek an additional exemption pursuant to the
  338  requirements of this subsection complete a commission-approved
  339  basic recruit training program, as required by the commission by
  340  rule. Except as provided in subsection (1), before the employing
  341  agency may employ or appoint the applicant as an officer, the
  342  applicant must meet the minimum qualifications described in s.
  343  943.13(1)-(8), and must fulfill the requirements of s.
  344  943.13(10).
  345         Section 6. Subsection (3) of section 943.1395, Florida
  346  Statutes, is amended to read:
  347         943.1395 Certification for employment or appointment;
  348  concurrent certification; reemployment or reappointment;
  349  inactive status; revocation; suspension; investigation.—
  350         (3) Any certified officer who has separated from employment
  351  or appointment and who is not reemployed or reappointed by an
  352  employing agency within 4 years after the date of separation
  353  must meet the minimum qualifications described in s. 943.13,
  354  except for the requirement found in s. 943.13(9). Further, such
  355  officer must complete any training required by the commission by
  356  rule in compliance with s. 943.131(2). Any such officer who
  357  fails to comply with the requirements provided in s. 943.131(2)
  358  is not reemployed or reappointed by an employing agency within 8
  359  years after the date of separation must meet the minimum
  360  qualifications described in s. 943.13, to include the
  361  requirement of s. 943.13(9).
  362         Section 7. Paragraph (g) of subsection (1) of section
  363  943.17, Florida Statutes, is amended to read:
  364         943.17 Basic recruit, advanced, and career development
  365  training programs; participation; cost; evaluation.—The
  366  commission shall, by rule, design, implement, maintain,
  367  evaluate, and revise entry requirements and job-related
  368  curricula and performance standards for basic recruit, advanced,
  369  and career development training programs and courses. The rules
  370  shall include, but are not limited to, a methodology to assess
  371  relevance of the subject matter to the job, student performance,
  372  and instructor competency.
  373         (1) The commission shall:
  374         (g) Assure that entrance into the basic recruit training
  375  program for law enforcement and, correctional, and correctional
  376  probation officers be limited to those who have passed a basic
  377  skills examination and assessment instrument, based on a job
  378  task analysis in each discipline and adopted by the commission.
  379         Section 8. Section 943.32, Florida Statutes, is amended to
  380  read:
  381         943.32 Statewide criminal analysis laboratory system.—There
  382  is established a statewide criminal analysis laboratory system
  383  to be composed of:
  384         (1) The state-operated laboratories under the jurisdiction
  385  of the Department of Law Enforcement in Ft. Myers, Jacksonville,
  386  Pensacola, Orlando, Tallahassee, Tampa, and such other areas of
  387  the state as may be necessary;
  388         (2) The existing locally funded laboratories in Broward,
  389  Indian River, Miami-Dade, Monroe, Palm Beach, and Pinellas
  390  Counties, specifically designated in s. 943.35 to be eligible
  391  for state matching funds; and
  392         (3) Such other laboratories as render criminal analysis
  393  laboratory services to criminal justice agencies in the state.
  394         Section 9. This act shall take effect July 1, 2010.

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