October 20, 2020
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_h0091__
HB 91

1
A bill to be entitled
2An act relating to adult protective services; amending s.
3415.101, F.S.; revising legislative intent with respect to
4adult protective services; providing for care and
5protection of all vulnerable adults; amending s. 415.102,
6F.S.; defining the term "activities of daily living";
7revising the definition of the term "vulnerable adult";
8conforming a cross-reference; amending s. 415.103, F.S.;
9providing for certain suspected abuse cases to be
10transferred to the local county sheriff's office; amending
11s. 415.1051, F.S.; providing for the Department of
12Children and Family Services to file a petition to
13determine incapacity and guardianship under certain
14circumstances; amending s. 322.142, F.S.; authorizing the
15Department of Highway Safety and Motor Vehicles to provide
16copies of drivers' license files to the Department of
17Children and Family Services to conduct protective
18investigations; amending ss. 943.0585 and 943.059, F.S.;
19conforming cross-references; providing an effective date.
20
21Be It Enacted by the Legislature of the State of Florida:
22
23     Section 1.  Subsection (2) of section 415.101, Florida
24Statutes, is amended to read:
25     415.101  Adult Protective Services Act; legislative
26intent.--
27     (2)  The Legislature recognizes that there are many persons
28in this state who, because of age or disability, are in need of
29protective services. Such services should allow such an
30individual the same rights as other citizens and, at the same
31time, protect the individual from abuse, neglect, and
32exploitation. It is the intent of the Legislature to provide for
33the detection and correction of abuse, neglect, and exploitation
34through social services and criminal investigations and to
35establish a program of protective services for all vulnerable
36disabled adults or elderly persons in need of them. It is
37intended that the mandatory reporting of such cases will cause
38the protective services of the state to be brought to bear in an
39effort to prevent further abuse, neglect, and exploitation of
40vulnerable disabled adults or elderly persons. In taking this
41action, the Legislature intends to place the fewest possible
42restrictions on personal liberty and the exercise of
43constitutional rights, consistent with due process and
44protection from abuse, neglect, and exploitation. Further, the
45Legislature intends to encourage the constructive involvement of
46families in the care and protection of vulnerable disabled
47adults or elderly persons.
48     Section 2.  Subsections (2) through (27) of section
49415.102, Florida Statutes, are renumbered as subsections (3)
50through (28), respectively, current subsections (4) and (26) are
51amended, and a new subsection (2) is added to that section, to
52read:
53     415.102  Definitions of terms used in ss. 415.101-
54415.113.--As used in ss. 415.101-415.113, the term:
55     (2)  "Activities of daily living" means functions and tasks
56for self-care, including eating, bathing, grooming, dressing,
57ambulating, and other similar tasks.
58     (5)(4)  "Caregiver" means a person who has been entrusted
59with or has assumed the responsibility for frequent and regular
60care of or services to a vulnerable adult on a temporary or
61permanent basis and who has a commitment, agreement, or
62understanding with that person or that person's guardian that a
63caregiver role exists. "Caregiver" includes, but is not limited
64to, relatives, household members, guardians, neighbors, and
65employees and volunteers of facilities as defined in subsection
66(9) (8). For the purpose of departmental investigative
67jurisdiction, the term "caregiver" does not include law
68enforcement officers or employees of municipal or county
69detention facilities or the Department of Corrections while
70acting in an official capacity.
71     (27)(26)  "Vulnerable adult" means a person 18 years of age
72or older whose ability to perform the normal activities of daily
73living or to provide for his or her own care or protection is
74impaired due to a mental, emotional, sensory, long-term
75physical, or developmental disability or dysfunction
76dysfunctioning, or brain damage, or the infirmities of aging.
77     Section 3.  Subsection (2) of section 415.103, Florida
78Statutes, is amended to read:
79     415.103  Central abuse hotline.--
80     (2)  Upon receiving an oral or written report of known or
81suspected abuse, neglect, or exploitation of a vulnerable adult,
82the central abuse hotline must determine if the report requires
83an immediate onsite protective investigation. For reports
84requiring an immediate onsite protective investigation, the
85central abuse hotline must immediately notify the department's
86designated protective investigative district staff responsible
87for protective investigations to ensure prompt initiation of an
88onsite investigation. For reports not requiring an immediate
89onsite protective investigation, the central abuse hotline must
90notify the department's designated protective investigative
91district staff responsible for protective investigations in
92sufficient time to allow for an investigation to be commenced
93within 24 hours. At the time of notification of district staff
94with respect to the report, the central abuse hotline must also
95provide any known information on any previous report concerning
96a subject of the present report or any pertinent information
97relative to the present report or any noted earlier reports. If
98the report is of known or suspected abuse of a vulnerable adult
99by someone other than a relative, caregiver, or household
100member, the report shall be immediately transferred to the
101appropriate county sheriff's office.
102     Section 4.  Paragraph (e) of subsection (1) and paragraph
103(g) of subsection (2) of section 415.1051, Florida Statutes, are
104amended to read:
105     415.1051  Protective services interventions when capacity
106to consent is lacking; nonemergencies; emergencies; orders;
107limitations.--
108     (1)  NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.--If
109the department has reasonable cause to believe that a vulnerable
110adult or a vulnerable adult in need of services is being abused,
111neglected, or exploited and is in need of protective services
112but lacks the capacity to consent to protective services, the
113department shall petition the court for an order authorizing the
114provision of protective services.
115     (e)  Continued protective services.--
116     1.  No more than 60 days after the date of the order
117authorizing the provision of protective services, the department
118shall petition the court to determine whether:
119     a.  Protective services will be continued with the consent
120of the vulnerable adult pursuant to this subsection;
121     b.  Protective services will be continued for the
122vulnerable adult who lacks capacity;
123     c.  Protective services will be discontinued; or
124     d.  A petition for guardianship should be filed pursuant to
125chapter 744.
126     2.  If the court determines that a petition for
127guardianship should be filed pursuant to chapter 744, the court,
128for good cause shown, may order continued protective services
129until it makes a determination regarding capacity.
130     3.  If the department has a good faith belief that the
131vulnerable adult lacks the capacity to consent to protective
132services, the petition to determine incapacity under s. 744.3201
133may be filed by the department. Once the petition is filed, the
134department may not be appointed guardian and may not provide
135legal counsel for the guardian.
136     (2)  EMERGENCY PROTECTIVE SERVICES INTERVENTION.--If the
137department has reasonable cause to believe that a vulnerable
138adult is suffering from abuse or neglect that presents a risk of
139death or serious physical injury to the vulnerable adult and
140that the vulnerable adult lacks the capacity to consent to
141emergency protective services, the department may take action
142under this subsection. If the vulnerable adult has the capacity
143to consent and refuses consent to emergency protective services,
144emergency protective services may not be provided.
145     (g)  Continued emergency protective services.--
146     1.  Not more than 60 days after the date of the order
147authorizing the provision of emergency protective services, the
148department shall petition the court to determine whether:
149     a.  Emergency protective services will be continued with
150the consent of the vulnerable adult;
151     b.  Emergency protective services will be continued for the
152vulnerable adult who lacks capacity;
153     c.  Emergency protective services will be discontinued; or
154     d.  A petition should be filed under chapter 744.
155     2.  If it is decided to file a petition under chapter 744,
156for good cause shown, the court may order continued emergency
157protective services until a determination is made by the court.
158     3.  If the department has a good faith belief that the
159vulnerable adult lacks the capacity to consent to protective
160services, the petition to determine incapacity under s. 744.3201
161may be filed by the department. Once the petition is filed, the
162department may not be appointed guardian and may not provide
163legal counsel for the guardian.
164     Section 5.  Subsection (4) of section 322.142, Florida
165Statutes, is amended to read:
166     322.142  Color photographic or digital imaged licenses.--
167     (4)  The department may maintain a film negative or print
168file. The department shall maintain a record of the digital
169image and signature of the licensees, together with other data
170required by the department for identification and retrieval.
171Reproductions from the file or digital record are exempt from
172the provisions of s. 119.07(1) and shall be made and issued only
173for departmental administrative purposes; for the issuance of
174duplicate licenses; in response to law enforcement agency
175requests; to the Department of State pursuant to an interagency
176agreement to facilitate determinations of eligibility of voter
177registration applicants and registered voters in accordance with
178ss. 98.045 and 98.075; to the Department of Revenue pursuant to
179an interagency agreement for use in establishing paternity and
180establishing, modifying, or enforcing support obligations in
181Title IV-D cases; to the Department of Children and Family
182Services pursuant to an interagency agreement to conduct
183protective investigations under part III of chapter 39 and
184chapter 415; or to the Department of Financial Services pursuant
185to an interagency agreement to facilitate the location of owners
186of unclaimed property, the validation of unclaimed property
187claims, and the identification of fraudulent or false claims.
188     Section 6.  Paragraph (a) of subsection (4) of section
189943.0585, Florida Statutes, is amended to read:
190     943.0585  Court-ordered expunction of criminal history
191records.--The courts of this state have jurisdiction over their
192own procedures, including the maintenance, expunction, and
193correction of judicial records containing criminal history
194information to the extent such procedures are not inconsistent
195with the conditions, responsibilities, and duties established by
196this section. Any court of competent jurisdiction may order a
197criminal justice agency to expunge the criminal history record
198of a minor or an adult who complies with the requirements of
199this section. The court shall not order a criminal justice
200agency to expunge a criminal history record until the person
201seeking to expunge a criminal history record has applied for and
202received a certificate of eligibility for expunction pursuant to
203subsection (2). A criminal history record that relates to a
204violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
205s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
206827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
207893.135, s. 916.1075, a violation enumerated in s. 907.041, or
208any violation specified as a predicate offense for registration
209as a sexual predator pursuant to s. 775.21, without regard to
210whether that offense alone is sufficient to require such
211registration, or for registration as a sexual offender pursuant
212to s. 943.0435, may not be expunged, without regard to whether
213adjudication was withheld, if the defendant was found guilty of
214or pled guilty or nolo contendere to the offense, or if the
215defendant, as a minor, was found to have committed, or pled
216guilty or nolo contendere to committing, the offense as a
217delinquent act. The court may only order expunction of a
218criminal history record pertaining to one arrest or one incident
219of alleged criminal activity, except as provided in this
220section. The court may, at its sole discretion, order the
221expunction of a criminal history record pertaining to more than
222one arrest if the additional arrests directly relate to the
223original arrest. If the court intends to order the expunction of
224records pertaining to such additional arrests, such intent must
225be specified in the order. A criminal justice agency may not
226expunge any record pertaining to such additional arrests if the
227order to expunge does not articulate the intention of the court
228to expunge a record pertaining to more than one arrest. This
229section does not prevent the court from ordering the expunction
230of only a portion of a criminal history record pertaining to one
231arrest or one incident of alleged criminal activity.
232Notwithstanding any law to the contrary, a criminal justice
233agency may comply with laws, court orders, and official requests
234of other jurisdictions relating to expunction, correction, or
235confidential handling of criminal history records or information
236derived therefrom. This section does not confer any right to the
237expunction of any criminal history record, and any request for
238expunction of a criminal history record may be denied at the
239sole discretion of the court.
240     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
241criminal history record of a minor or an adult which is ordered
242expunged by a court of competent jurisdiction pursuant to this
243section must be physically destroyed or obliterated by any
244criminal justice agency having custody of such record; except
245that any criminal history record in the custody of the
246department must be retained in all cases. A criminal history
247record ordered expunged that is retained by the department is
248confidential and exempt from the provisions of s. 119.07(1) and
249s. 24(a), Art. I of the State Constitution and not available to
250any person or entity except upon order of a court of competent
251jurisdiction. A criminal justice agency may retain a notation
252indicating compliance with an order to expunge.
253     (a)  The person who is the subject of a criminal history
254record that is expunged under this section or under other
255provisions of law, including former s. 893.14, former s. 901.33,
256and former s. 943.058, may lawfully deny or fail to acknowledge
257the arrests covered by the expunged record, except when the
258subject of the record:
259     1.  Is a candidate for employment with a criminal justice
260agency;
261     2.  Is a defendant in a criminal prosecution;
262     3.  Concurrently or subsequently petitions for relief under
263this section or s. 943.059;
264     4.  Is a candidate for admission to The Florida Bar;
265     5.  Is seeking to be employed or licensed by or to contract
266with the Department of Children and Family Services, the Agency
267for Health Care Administration, the Agency for Persons with
268Disabilities, or the Department of Juvenile Justice or to be
269employed or used by such contractor or licensee in a sensitive
270position having direct contact with children, the
271developmentally disabled, the aged, or the elderly as provided
272in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
273402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
274chapter 916, s. 985.644, chapter 400, or chapter 429;
275     6.  Is seeking to be employed or licensed by the Department
276of Education, any district school board, any university
277laboratory school, any charter school, any private or parochial
278school, or any local governmental entity that licenses child
279care facilities; or
280     7.  Is seeking authorization from a seaport listed in s.
281311.09 for employment within or access to one or more of such
282seaports pursuant to s. 311.12.
283     Section 7.  Paragraph (a) of subsection (4) of section
284943.059, Florida Statutes, is amended to read:
285     943.059  Court-ordered sealing of criminal history
286records.--The courts of this state shall continue to have
287jurisdiction over their own procedures, including the
288maintenance, sealing, and correction of judicial records
289containing criminal history information to the extent such
290procedures are not inconsistent with the conditions,
291responsibilities, and duties established by this section. Any
292court of competent jurisdiction may order a criminal justice
293agency to seal the criminal history record of a minor or an
294adult who complies with the requirements of this section. The
295court shall not order a criminal justice agency to seal a
296criminal history record until the person seeking to seal a
297criminal history record has applied for and received a
298certificate of eligibility for sealing pursuant to subsection
299(2). A criminal history record that relates to a violation of s.
300393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
301800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
302839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
303916.1075, a violation enumerated in s. 907.041, or any violation
304specified as a predicate offense for registration as a sexual
305predator pursuant to s. 775.21, without regard to whether that
306offense alone is sufficient to require such registration, or for
307registration as a sexual offender pursuant to s. 943.0435, may
308not be sealed, without regard to whether adjudication was
309withheld, if the defendant was found guilty of or pled guilty or
310nolo contendere to the offense, or if the defendant, as a minor,
311was found to have committed or pled guilty or nolo contendere to
312committing the offense as a delinquent act. The court may only
313order sealing of a criminal history record pertaining to one
314arrest or one incident of alleged criminal activity, except as
315provided in this section. The court may, at its sole discretion,
316order the sealing of a criminal history record pertaining to
317more than one arrest if the additional arrests directly relate
318to the original arrest. If the court intends to order the
319sealing of records pertaining to such additional arrests, such
320intent must be specified in the order. A criminal justice agency
321may not seal any record pertaining to such additional arrests if
322the order to seal does not articulate the intention of the court
323to seal records pertaining to more than one arrest. This section
324does not prevent the court from ordering the sealing of only a
325portion of a criminal history record pertaining to one arrest or
326one incident of alleged criminal activity. Notwithstanding any
327law to the contrary, a criminal justice agency may comply with
328laws, court orders, and official requests of other jurisdictions
329relating to sealing, correction, or confidential handling of
330criminal history records or information derived therefrom. This
331section does not confer any right to the sealing of any criminal
332history record, and any request for sealing a criminal history
333record may be denied at the sole discretion of the court.
334     (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal
335history record of a minor or an adult which is ordered sealed by
336a court of competent jurisdiction pursuant to this section is
337confidential and exempt from the provisions of s. 119.07(1) and
338s. 24(a), Art. I of the State Constitution and is available only
339to the person who is the subject of the record, to the subject's
340attorney, to criminal justice agencies for their respective
341criminal justice purposes, which include conducting a criminal
342history background check for approval of firearms purchases or
343transfers as authorized by state or federal law, to judges in
344the state courts system for the purpose of assisting them in
345their case-related decisionmaking responsibilities, as set forth
346in s. 943.053(5), or to those entities set forth in
347subparagraphs (a)1., 4., 5., 6., and 8. for their respective
348licensing, access authorization, and employment purposes.
349     (a)  The subject of a criminal history record sealed under
350this section or under other provisions of law, including former
351s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
352deny or fail to acknowledge the arrests covered by the sealed
353record, except when the subject of the record:
354     1.  Is a candidate for employment with a criminal justice
355agency;
356     2.  Is a defendant in a criminal prosecution;
357     3.  Concurrently or subsequently petitions for relief under
358this section or s. 943.0585;
359     4.  Is a candidate for admission to The Florida Bar;
360     5.  Is seeking to be employed or licensed by or to contract
361with the Department of Children and Family Services, the Agency
362for Health Care Administration, the Agency for Persons with
363Disabilities, or the Department of Juvenile Justice or to be
364employed or used by such contractor or licensee in a sensitive
365position having direct contact with children, the
366developmentally disabled, the aged, or the elderly as provided
367in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
368402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
369s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter
370429;
371     6.  Is seeking to be employed or licensed by the Department
372of Education, any district school board, any university
373laboratory school, any charter school, any private or parochial
374school, or any local governmental entity that licenses child
375care facilities;
376     7.  Is attempting to purchase a firearm from a licensed
377importer, licensed manufacturer, or licensed dealer and is
378subject to a criminal history check under state or federal law;
379or
380     8.  Is seeking authorization from a Florida seaport
381identified in s. 311.09 for employment within or access to one
382or more of such seaports pursuant to s. 311.12.
383     Section 8.  This act shall take effect July 1, 2010.


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