October 20, 2020
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_h0091c1
CS/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. 435.04, 943.0585, and
19943.059, F.S.; conforming cross-references; providing an
20effective date.
21
22Be It Enacted by the Legislature of the State of Florida:
23
24     Section 1.  Subsection (2) of section 415.101, Florida
25Statutes, is amended to read:
26     415.101  Adult Protective Services Act; legislative
27intent.-
28     (2)  The Legislature recognizes that there are many persons
29in this state who, because of age or disability, are in need of
30protective services. Such services should allow such an
31individual the same rights as other citizens and, at the same
32time, protect the individual from abuse, neglect, and
33exploitation. It is the intent of the Legislature to provide for
34the detection and correction of abuse, neglect, and exploitation
35through social services and criminal investigations and to
36establish a program of protective services for all vulnerable
37disabled adults or elderly persons in need of them. It is
38intended that the mandatory reporting of such cases will cause
39the protective services of the state to be brought to bear in an
40effort to prevent further abuse, neglect, and exploitation of
41vulnerable disabled adults or elderly persons. In taking this
42action, the Legislature intends to place the fewest possible
43restrictions on personal liberty and the exercise of
44constitutional rights, consistent with due process and
45protection from abuse, neglect, and exploitation. Further, the
46Legislature intends to encourage the constructive involvement of
47families in the care and protection of vulnerable disabled
48adults or elderly persons.
49     Section 2.  Subsections (2) through (27) of section
50415.102, Florida Statutes, are renumbered as subsections (3)
51through (28), respectively, current subsections (4) and (26) are
52amended, and a new subsection (2) is added to that section, to
53read:
54     415.102  Definitions of terms used in ss. 415.101-415.113.-
55As used in ss. 415.101-415.113, the term:
56     (2)  "Activities of daily living" means functions and tasks
57for self-care, including ambulation, bathing, dressing, eating,
58grooming, toileting, and other similar tasks.
59     (5)(4)  "Caregiver" means a person who has been entrusted
60with or has assumed the responsibility for frequent and regular
61care of or services to a vulnerable adult on a temporary or
62permanent basis and who has a commitment, agreement, or
63understanding with that person or that person's guardian that a
64caregiver role exists. "Caregiver" includes, but is not limited
65to, relatives, household members, guardians, neighbors, and
66employees and volunteers of facilities as defined in subsection
67(9) (8). For the purpose of departmental investigative
68jurisdiction, the term "caregiver" does not include law
69enforcement officers or employees of municipal or county
70detention facilities or the Department of Corrections while
71acting in an official capacity.
72     (27)(26)  "Vulnerable adult" means a person 18 years of age
73or older whose ability to perform the normal activities of daily
74living or to provide for his or her own care or protection is
75impaired due to a mental, emotional, sensory, long-term
76physical, or developmental disability or dysfunction
77dysfunctioning, or brain damage, or the infirmities of aging.
78     Section 3.  Subsection (2) of section 415.103, Florida
79Statutes, is amended to read:
80     415.103  Central abuse hotline.-
81     (2)  Upon receiving an oral or written report of known or
82suspected abuse, neglect, or exploitation of a vulnerable adult,
83the central abuse hotline must determine if the report requires
84an immediate onsite protective investigation. For reports
85requiring an immediate onsite protective investigation, the
86central abuse hotline must immediately notify the department's
87designated protective investigative district staff responsible
88for protective investigations to ensure prompt initiation of an
89onsite investigation. For reports not requiring an immediate
90onsite protective investigation, the central abuse hotline must
91notify the department's designated protective investigative
92district staff responsible for protective investigations in
93sufficient time to allow for an investigation to be commenced
94within 24 hours. At the time of notification of district staff
95with respect to the report, the central abuse hotline must also
96provide any known information on any previous report concerning
97a subject of the present report or any pertinent information
98relative to the present report or any noted earlier reports. If
99the report is of known or suspected abuse of a vulnerable adult
100by someone other than a relative, caregiver, or household
101member, the report shall be immediately transferred to the
102appropriate county sheriff's office.
103     Section 4.  Paragraph (e) of subsection (1) and paragraph
104(g) of subsection (2) of section 415.1051, Florida Statutes, are
105amended to read:
106     415.1051  Protective services interventions when capacity
107to consent is lacking; nonemergencies; emergencies; orders;
108limitations.-
109     (1)  NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.-If the
110department has reasonable cause to believe that a vulnerable
111adult or a vulnerable adult in need of services is being abused,
112neglected, or exploited and is in need of protective services
113but lacks the capacity to consent to protective services, the
114department shall petition the court for an order authorizing the
115provision of protective services.
116     (e)  Continued protective services.-
117     1.  No more than 60 days after the date of the order
118authorizing the provision of protective services, the department
119shall petition the court to determine whether:
120     a.  Protective services will be continued with the consent
121of the vulnerable adult pursuant to this subsection;
122     b.  Protective services will be continued for the
123vulnerable adult who lacks capacity;
124     c.  Protective services will be discontinued; or
125     d.  A petition for guardianship should be filed pursuant to
126chapter 744.
127     2.  If the court determines that a petition for
128guardianship should be filed pursuant to chapter 744, the court,
129for good cause shown, may order continued protective services
130until it makes a determination regarding capacity.
131     3.  If the department has a good faith belief that the
132vulnerable adult lacks the capacity to consent to protective
133services, the petition to determine incapacity under s. 744.3201
134may be filed by the department. Once the petition is filed, the
135department may not be appointed guardian and may not provide
136legal counsel for the guardian.
137     (2)  EMERGENCY PROTECTIVE SERVICES INTERVENTION.-If the
138department has reasonable cause to believe that a vulnerable
139adult is suffering from abuse or neglect that presents a risk of
140death or serious physical injury to the vulnerable adult and
141that the vulnerable adult lacks the capacity to consent to
142emergency protective services, the department may take action
143under this subsection. If the vulnerable adult has the capacity
144to consent and refuses consent to emergency protective services,
145emergency protective services may not be provided.
146     (g)  Continued emergency protective services.-
147     1.  Not more than 60 days after the date of the order
148authorizing the provision of emergency protective services, the
149department shall petition the court to determine whether:
150     a.  Emergency protective services will be continued with
151the consent of the vulnerable adult;
152     b.  Emergency protective services will be continued for the
153vulnerable adult who lacks capacity;
154     c.  Emergency protective services will be discontinued; or
155     d.  A petition should be filed under chapter 744.
156     2.  If it is decided to file a petition under chapter 744,
157for good cause shown, the court may order continued emergency
158protective services until a determination is made by the court.
159     3.  If the department has a good faith belief that the
160vulnerable adult lacks the capacity to consent to protective
161services, the petition to determine incapacity under s. 744.3201
162may be filed by the department. Once the petition is filed, the
163department may not be appointed guardian and may not provide
164legal counsel for the guardian.
165     Section 5.  Subsection (4) of section 322.142, Florida
166Statutes, is amended to read:
167     322.142  Color photographic or digital imaged licenses.-
168     (4)  The department may maintain a film negative or print
169file. The department shall maintain a record of the digital
170image and signature of the licensees, together with other data
171required by the department for identification and retrieval.
172Reproductions from the file or digital record are exempt from
173the provisions of s. 119.07(1) and shall be made and issued only
174for departmental administrative purposes; for the issuance of
175duplicate licenses; in response to law enforcement agency
176requests; to the Department of State pursuant to an interagency
177agreement to facilitate determinations of eligibility of voter
178registration applicants and registered voters in accordance with
179ss. 98.045 and 98.075; to the Department of Revenue pursuant to
180an interagency agreement for use in establishing paternity and
181establishing, modifying, or enforcing support obligations in
182Title IV-D cases; to the Department of Children and Family
183Services pursuant to an interagency agreement to conduct
184protective investigations under part III of chapter 39 and
185chapter 415; or to the Department of Financial Services pursuant
186to an interagency agreement to facilitate the location of owners
187of unclaimed property, the validation of unclaimed property
188claims, and the identification of fraudulent or false claims.
189     Section 6.  Paragraph (a) of subsection (4) of section
190435.04, Florida Statutes, is amended to read:
191     435.04  Level 2 screening standards.-
192     (4)  Standards must also ensure that the person:
193     (a)  For employees or employers licensed or registered
194pursuant to chapter 400 or chapter 429, does not have a
195confirmed report of abuse, neglect, or exploitation as defined
196in s. 415.102(6), which has been uncontested or upheld under s.
197415.103.
198     Section 7.  Paragraph (a) of subsection (4) of section
199943.0585, Florida Statutes, is amended to read:
200     943.0585  Court-ordered expunction of criminal history
201records.-The courts of this state have jurisdiction over their
202own procedures, including the maintenance, expunction, and
203correction of judicial records containing criminal history
204information to the extent such procedures are not inconsistent
205with the conditions, responsibilities, and duties established by
206this section. Any court of competent jurisdiction may order a
207criminal justice agency to expunge the criminal history record
208of a minor or an adult who complies with the requirements of
209this section. The court shall not order a criminal justice
210agency to expunge a criminal history record until the person
211seeking to expunge a criminal history record has applied for and
212received a certificate of eligibility for expunction pursuant to
213subsection (2). A criminal history record that relates to a
214violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
215s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
216827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
217893.135, s. 916.1075, a violation enumerated in s. 907.041, or
218any violation specified as a predicate offense for registration
219as a sexual predator pursuant to s. 775.21, without regard to
220whether that offense alone is sufficient to require such
221registration, or for registration as a sexual offender pursuant
222to s. 943.0435, may not be expunged, without regard to whether
223adjudication was withheld, if the defendant was found guilty of
224or pled guilty or nolo contendere to the offense, or if the
225defendant, as a minor, was found to have committed, or pled
226guilty or nolo contendere to committing, the offense as a
227delinquent act. The court may only order expunction of a
228criminal history record pertaining to one arrest or one incident
229of alleged criminal activity, except as provided in this
230section. The court may, at its sole discretion, order the
231expunction of a criminal history record pertaining to more than
232one arrest if the additional arrests directly relate to the
233original arrest. If the court intends to order the expunction of
234records pertaining to such additional arrests, such intent must
235be specified in the order. A criminal justice agency may not
236expunge any record pertaining to such additional arrests if the
237order to expunge does not articulate the intention of the court
238to expunge a record pertaining to more than one arrest. This
239section does not prevent the court from ordering the expunction
240of only a portion of a criminal history record pertaining to one
241arrest or one incident of alleged criminal activity.
242Notwithstanding any law to the contrary, a criminal justice
243agency may comply with laws, court orders, and official requests
244of other jurisdictions relating to expunction, correction, or
245confidential handling of criminal history records or information
246derived therefrom. This section does not confer any right to the
247expunction of any criminal history record, and any request for
248expunction of a criminal history record may be denied at the
249sole discretion of the court.
250     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.-Any
251criminal history record of a minor or an adult which is ordered
252expunged by a court of competent jurisdiction pursuant to this
253section must be physically destroyed or obliterated by any
254criminal justice agency having custody of such record; except
255that any criminal history record in the custody of the
256department must be retained in all cases. A criminal history
257record ordered expunged that is retained by the department is
258confidential and exempt from the provisions of s. 119.07(1) and
259s. 24(a), Art. I of the State Constitution and not available to
260any person or entity except upon order of a court of competent
261jurisdiction. A criminal justice agency may retain a notation
262indicating compliance with an order to expunge.
263     (a)  The person who is the subject of a criminal history
264record that is expunged under this section or under other
265provisions of law, including former s. 893.14, former s. 901.33,
266and former s. 943.058, may lawfully deny or fail to acknowledge
267the arrests covered by the expunged record, except when the
268subject of the record:
269     1.  Is a candidate for employment with a criminal justice
270agency;
271     2.  Is a defendant in a criminal prosecution;
272     3.  Concurrently or subsequently petitions for relief under
273this section or s. 943.059;
274     4.  Is a candidate for admission to The Florida Bar;
275     5.  Is seeking to be employed or licensed by or to contract
276with the Department of Children and Family Services, the Agency
277for Health Care Administration, the Agency for Persons with
278Disabilities, or the Department of Juvenile Justice or to be
279employed or used by such contractor or licensee in a sensitive
280position having direct contact with children, the
281developmentally disabled, the aged, or the elderly as provided
282in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
283402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
284chapter 916, s. 985.644, chapter 400, or chapter 429;
285     6.  Is seeking to be employed or licensed by the Department
286of Education, any district school board, any university
287laboratory school, any charter school, any private or parochial
288school, or any local governmental entity that licenses child
289care facilities; or
290     7.  Is seeking authorization from a seaport listed in s.
291311.09 for employment within or access to one or more of such
292seaports pursuant to s. 311.12.
293     Section 8.  Paragraph (a) of subsection (4) of section
294943.059, Florida Statutes, is amended to read:
295     943.059  Court-ordered sealing of criminal history
296records.-The courts of this state shall continue to have
297jurisdiction over their own procedures, including the
298maintenance, sealing, and correction of judicial records
299containing criminal history information to the extent such
300procedures are not inconsistent with the conditions,
301responsibilities, and duties established by this section. Any
302court of competent jurisdiction may order a criminal justice
303agency to seal the criminal history record of a minor or an
304adult who complies with the requirements of this section. The
305court shall not order a criminal justice agency to seal a
306criminal history record until the person seeking to seal a
307criminal history record has applied for and received a
308certificate of eligibility for sealing pursuant to subsection
309(2). A criminal history record that relates to a violation of s.
310393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
311800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
312839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
313916.1075, a violation enumerated in s. 907.041, or any violation
314specified as a predicate offense for registration as a sexual
315predator pursuant to s. 775.21, without regard to whether that
316offense alone is sufficient to require such registration, or for
317registration as a sexual offender pursuant to s. 943.0435, may
318not be sealed, without regard to whether adjudication was
319withheld, if the defendant was found guilty of or pled guilty or
320nolo contendere to the offense, or if the defendant, as a minor,
321was found to have committed or pled guilty or nolo contendere to
322committing the offense as a delinquent act. The court may only
323order sealing of a criminal history record pertaining to one
324arrest or one incident of alleged criminal activity, except as
325provided in this section. The court may, at its sole discretion,
326order the sealing of a criminal history record pertaining to
327more than one arrest if the additional arrests directly relate
328to the original arrest. If the court intends to order the
329sealing of records pertaining to such additional arrests, such
330intent must be specified in the order. A criminal justice agency
331may not seal any record pertaining to such additional arrests if
332the order to seal does not articulate the intention of the court
333to seal records pertaining to more than one arrest. This section
334does not prevent the court from ordering the sealing of only a
335portion of a criminal history record pertaining to one arrest or
336one incident of alleged criminal activity. Notwithstanding any
337law to the contrary, a criminal justice agency may comply with
338laws, court orders, and official requests of other jurisdictions
339relating to sealing, correction, or confidential handling of
340criminal history records or information derived therefrom. This
341section does not confer any right to the sealing of any criminal
342history record, and any request for sealing a criminal history
343record may be denied at the sole discretion of the court.
344     (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.-A criminal
345history record of a minor or an adult which is ordered sealed by
346a court of competent jurisdiction pursuant to this section is
347confidential and exempt from the provisions of s. 119.07(1) and
348s. 24(a), Art. I of the State Constitution and is available only
349to the person who is the subject of the record, to the subject's
350attorney, to criminal justice agencies for their respective
351criminal justice purposes, which include conducting a criminal
352history background check for approval of firearms purchases or
353transfers as authorized by state or federal law, to judges in
354the state courts system for the purpose of assisting them in
355their case-related decisionmaking responsibilities, as set forth
356in s. 943.053(5), or to those entities set forth in
357subparagraphs (a)1., 4., 5., 6., and 8. for their respective
358licensing, access authorization, and employment purposes.
359     (a)  The subject of a criminal history record sealed under
360this section or under other provisions of law, including former
361s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
362deny or fail to acknowledge the arrests covered by the sealed
363record, except when the subject of the record:
364     1.  Is a candidate for employment with a criminal justice
365agency;
366     2.  Is a defendant in a criminal prosecution;
367     3.  Concurrently or subsequently petitions for relief under
368this section or s. 943.0585;
369     4.  Is a candidate for admission to The Florida Bar;
370     5.  Is seeking to be employed or licensed by or to contract
371with the Department of Children and Family Services, the Agency
372for Health Care Administration, the Agency for Persons with
373Disabilities, or the Department of Juvenile Justice or to be
374employed or used by such contractor or licensee in a sensitive
375position having direct contact with children, the
376developmentally disabled, the aged, or the elderly as provided
377in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
378402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
379s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter
380429;
381     6.  Is seeking to be employed or licensed by the Department
382of Education, any district school board, any university
383laboratory school, any charter school, any private or parochial
384school, or any local governmental entity that licenses child
385care facilities;
386     7.  Is attempting to purchase a firearm from a licensed
387importer, licensed manufacturer, or licensed dealer and is
388subject to a criminal history check under state or federal law;
389or
390     8.  Is seeking authorization from a Florida seaport
391identified in s. 311.09 for employment within or access to one
392or more of such seaports pursuant to s. 311.12.
393     Section 9.  This act shall take effect July 1, 2010.


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