January 24, 2020
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       Florida Senate - 2010                                     SB 336
       
       
       
       By Senator Storms
       
       
       
       
       10-00148-10                                            2010336__
    1                        A bill to be entitled                      
    2         An act relating to adult protective services; amending
    3         s. 415.101, F.S.; revising terminology; amending s.
    4         415.102, F.S.; defining the term “activities of daily
    5         living” and revising the term “vulnerable adult”;
    6         conforming a cross-reference; amending s. 415.103,
    7         F.S.; requiring that the central abuse hotline, which
    8         is maintained by the Department of Children and Family
    9         Services, immediately transfer reports relating to
   10         vulnerable adults to the appropriate county sheriff’s
   11         office; amending s. 415.1051, F.S.; authorizing the
   12         department to file a petition to determine incapacity;
   13         prohibiting the department from acting as guardian or
   14         providing legal counsel to the guardian; amending s.
   15         322.142, F.S.; providing a cross-reference to
   16         authorize the release of certain records for purposes
   17         of protective investigations; amending ss. 435.04,
   18         943.0585, and 943.059, F.S.; conforming cross
   19         references; providing an effective date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Subsection (2) of section 415.101, Florida
   24  Statutes, is amended to read:
   25         415.101 Adult Protective Services Act; legislative intent.—
   26         (2) The Legislature recognizes that there are many persons
   27  in this state who, because of age or disability, are in need of
   28  protective services. Such services should allow such an
   29  individual the same rights as other citizens and, at the same
   30  time, protect the individual from abuse, neglect, and
   31  exploitation. It is the intent of the Legislature to provide for
   32  the detection and correction of abuse, neglect, and exploitation
   33  through social services and criminal investigations and to
   34  establish a program of protective services for vulnerable adults
   35  all disabled adults or elderly persons in need of them. It is
   36  intended that the mandatory reporting of such cases will cause
   37  the protective services of the state to further the be brought
   38  to bear in an effort to prevent further abuse, neglect, and
   39  exploitation of vulnerable adults disabled adults or elderly
   40  persons. In taking this action, the Legislature intends to place
   41  the fewest possible restrictions on personal liberty and the
   42  exercise of constitutional rights, consistent with due process
   43  and protection from abuse, neglect, and exploitation. Further,
   44  the Legislature intends to encourage the constructive
   45  involvement of families in the care and protection of vulnerable
   46  adults disabled adults or elderly persons.
   47         Section 2. Present subsections (2) through (27) of section
   48  415.102, Florida Statutes, are redesignated as subsections (3)
   49  through (28), respectively, present subsections (4) and (26) of
   50  that section are amended, and a new subsection (2) is added to
   51  that section, to read:
   52         415.102 Definitions of terms used in ss. 415.101-415.113.
   53  As used in ss. 415.101-415.113, the term:
   54         (2)“Activities of daily living” means functions and tasks
   55  for self-care, including ambulation, bathing, dressing, eating,
   56  grooming, toileting, and other similar tasks.
   57         (5)(4) “Caregiver” means a person who has been entrusted
   58  with or has assumed the responsibility for frequent and regular
   59  care of or services to a vulnerable adult on a temporary or
   60  permanent basis and who has a commitment, agreement, or
   61  understanding with that person or that person’s guardian that a
   62  caregiver role exists. The term “Caregiver” includes, but is not
   63  limited to, relatives, household members, guardians, neighbors,
   64  and employees and volunteers at a facility of facilities as
   65  defined in subsection (8). For the purpose of departmental
   66  investigative jurisdiction, the term “caregiver” does not
   67  include law enforcement officers or employees of municipal or
   68  county detention facilities or the Department of Corrections
   69  while acting in an official capacity.
   70         (27)(26) “Vulnerable adult” means a person 18 years of age
   71  or older whose ability to perform the normal activities of daily
   72  living or to provide for his or her own care or protection is
   73  impaired due to a mental, emotional, long-term physical,
   74  sensory, or developmental disability or dysfunction
   75  dysfunctioning, or brain damage, or the infirmities of aging.
   76         Section 3. Present paragraphs (c), (d), (e), (f), and (g)
   77  of subsection (1) of section 415.103, Florida Statutes, are
   78  redesignated as paragraphs (d), (e), (f), (g), and (h),
   79  respectively, and a new paragraph (c) is added to that
   80  subsection, to read:
   81         415.103 Central abuse hotline.—
   82         (1) The department shall establish and maintain a central
   83  abuse hotline that receives all reports made pursuant to s.
   84  415.1034 in writing or through a single statewide toll-free
   85  telephone number. Any person may use the statewide toll-free
   86  telephone number to report known or suspected abuse, neglect, or
   87  exploitation of a vulnerable adult at any hour of the day or
   88  night, any day of the week. The central abuse hotline must be
   89  operated in such a manner as to enable the department to:
   90         (c)Immediately transfer the report to the appropriate
   91  county sheriff’s office if the report is of known or suspected
   92  abuse of a vulnerable adult by someone other than the vulnerable
   93  adult’s relative, caregiver, or household member.
   94         Section 4. Paragraph (e) of subsection (1) and paragraph
   95  (g) of subsection (2) of section 415.1051, Florida Statutes, are
   96  amended to read:
   97         415.1051 Protective services interventions when capacity to
   98  consent is lacking; nonemergencies; emergencies; orders;
   99  limitations.—
  100         (1) NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.—If the
  101  department has reasonable cause to believe that a vulnerable
  102  adult or a vulnerable adult in need of services is being abused,
  103  neglected, or exploited and is in need of protective services
  104  but lacks the capacity to consent to protective services, the
  105  department shall petition the court for an order authorizing the
  106  provision of protective services.
  107         (e) Continued protective services.—
  108         1. Within No more than 60 days after the date of the order
  109  authorizing the provision of protective services, the department
  110  shall petition the court to determine whether:
  111         a. Protective services will be continued with the consent
  112  of the vulnerable adult pursuant to this subsection;
  113         b. Protective services will be continued for the vulnerable
  114  adult who lacks capacity;
  115         c. Protective services will be discontinued; or
  116         d. A petition for guardianship should be filed pursuant to
  117  chapter 744.
  118         2. If the court determines that a petition for guardianship
  119  should be filed pursuant to chapter 744, the court, for good
  120  cause shown, may order continued protective services until it
  121  makes a determination regarding capacity.
  122         3.The petition to determine incapacity under s. 744.3201
  123  may be filed by the department if the department has a good
  124  faith belief that the vulnerable adult lacks capacity. However,
  125  once the petition is filed, the department may not be appointed
  126  guardian and may not provide legal counsel for the guardian.
  127         (2) EMERGENCY PROTECTIVE SERVICES INTERVENTION.—If the
  128  department has reasonable cause to believe that a vulnerable
  129  adult is suffering from abuse or neglect that presents a risk of
  130  death or serious physical injury to the vulnerable adult and
  131  that the vulnerable adult lacks the capacity to consent to
  132  emergency protective services, the department may take action
  133  under this subsection. If the vulnerable adult has the capacity
  134  to consent and refuses consent to emergency protective services,
  135  emergency protective services may not be provided.
  136         (g) Continued emergency protective services.—
  137         1. Within Not more than 60 days after the date of the order
  138  authorizing the provision of emergency protective services, the
  139  department shall petition the court to determine whether:
  140         a. Emergency protective services will be continued with the
  141  consent of the vulnerable adult;
  142         b. Emergency protective services will be continued for the
  143  vulnerable adult who lacks capacity;
  144         c. Emergency protective services will be discontinued; or
  145         d. A petition should be filed under chapter 744.
  146         2. If it is decided to file a petition under chapter 744,
  147  for good cause shown, the court may order continued emergency
  148  protective services until a determination is made by the court.
  149         3.The petition to determine incapacity under s. 744.3201
  150  may be filed by the department if the department has a good
  151  faith belief that the vulnerable adult lacks capacity. However,
  152  once the petition is filed, the department may not be appointed
  153  guardian and may not provide legal counsel for the guardian.
  154         Section 5. Subsection (4) of section 322.142, Florida
  155  Statutes, is amended to read:
  156         322.142 Color photographic or digital imaged licenses.—
  157         (4) The department may maintain a film negative or print
  158  file. The department shall maintain a record of the digital
  159  image and signature of the licensees, together with other data
  160  required by the department for identification and retrieval.
  161  Reproductions from the file or digital record are exempt from
  162  the provisions of s. 119.07(1) and may shall be made and issued
  163  only for departmental administrative purposes; for the issuance
  164  of duplicate licenses; in response to law enforcement agency
  165  requests; to the Department of State pursuant to an interagency
  166  agreement to facilitate determinations of eligibility of voter
  167  registration applicants and registered voters in accordance with
  168  ss. 98.045 and 98.075; to the Department of Revenue pursuant to
  169  an interagency agreement for use in establishing paternity and
  170  establishing, modifying, or enforcing support obligations in
  171  Title IV-D cases; to the Department of Children and Family
  172  Services pursuant to an interagency agreement to conduct
  173  protective investigations under part III of chapter 39 or
  174  chapter 415; or to the Department of Financial Services pursuant
  175  to an interagency agreement to facilitate the location of owners
  176  of unclaimed property, the validation of unclaimed property
  177  claims, and the identification of fraudulent or false claims.
  178         Section 6. Paragraph (a) of subsection (4) of section
  179  435.04, Florida Statutes, is amended to read:
  180         435.04 Level 2 screening standards.—
  181         (4) Standards must also ensure that the person:
  182         (a) For employees or employers licensed or registered
  183  pursuant to chapter 400 or chapter 429, does not have a
  184  confirmed report of abuse, neglect, or exploitation as defined
  185  in s. 415.102(6), which has been uncontested or upheld under s.
  186  415.103.
  187         Section 7. Paragraph (a) of subsection (4) of section
  188  943.0585, Florida Statutes, is amended to read:
  189         943.0585 Court-ordered expunction of criminal history
  190  records.—The courts of this state have jurisdiction over their
  191  own procedures, including the maintenance, expunction, and
  192  correction of judicial records containing criminal history
  193  information to the extent such procedures are not inconsistent
  194  with the conditions, responsibilities, and duties established by
  195  this section. Any court of competent jurisdiction may order a
  196  criminal justice agency to expunge the criminal history record
  197  of a minor or an adult who complies with the requirements of
  198  this section. The court shall not order a criminal justice
  199  agency to expunge a criminal history record until the person
  200  seeking to expunge a criminal history record has applied for and
  201  received a certificate of eligibility for expunction pursuant to
  202  subsection (2). A criminal history record that relates to a
  203  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  204  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  205  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  206  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  207  any violation specified as a predicate offense for registration
  208  as a sexual predator pursuant to s. 775.21, without regard to
  209  whether that offense alone is sufficient to require such
  210  registration, or for registration as a sexual offender pursuant
  211  to s. 943.0435, may not be expunged, without regard to whether
  212  adjudication was withheld, if the defendant was found guilty of
  213  or pled guilty or nolo contendere to the offense, or if the
  214  defendant, as a minor, was found to have committed, or pled
  215  guilty or nolo contendere to committing, the offense as a
  216  delinquent act. The court may only order expunction of a
  217  criminal history record pertaining to one arrest or one incident
  218  of alleged criminal activity, except as provided in this
  219  section. The court may, at its sole discretion, order the
  220  expunction of a criminal history record pertaining to more than
  221  one arrest if the additional arrests directly relate to the
  222  original arrest. If the court intends to order the expunction of
  223  records pertaining to such additional arrests, such intent must
  224  be specified in the order. A criminal justice agency may not
  225  expunge any record pertaining to such additional arrests if the
  226  order to expunge does not articulate the intention of the court
  227  to expunge a record pertaining to more than one arrest. This
  228  section does not prevent the court from ordering the expunction
  229  of only a portion of a criminal history record pertaining to one
  230  arrest or one incident of alleged criminal activity.
  231  Notwithstanding any law to the contrary, a criminal justice
  232  agency may comply with laws, court orders, and official requests
  233  of other jurisdictions relating to expunction, correction, or
  234  confidential handling of criminal history records or information
  235  derived therefrom. This section does not confer any right to the
  236  expunction of any criminal history record, and any request for
  237  expunction of a criminal history record may be denied at the
  238  sole discretion of the court.
  239         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  240  criminal history record of a minor or an adult which is ordered
  241  expunged by a court of competent jurisdiction pursuant to this
  242  section must be physically destroyed or obliterated by any
  243  criminal justice agency having custody of such record; except
  244  that any criminal history record in the custody of the
  245  department must be retained in all cases. A criminal history
  246  record ordered expunged that is retained by the department is
  247  confidential and exempt from the provisions of s. 119.07(1) and
  248  s. 24(a), Art. I of the State Constitution and not available to
  249  any person or entity except upon order of a court of competent
  250  jurisdiction. A criminal justice agency may retain a notation
  251  indicating compliance with an order to expunge.
  252         (a) The person who is the subject of a criminal history
  253  record that is expunged under this section or under other
  254  provisions of law, including former s. 893.14, former s. 901.33,
  255  and former s. 943.058, may lawfully deny or fail to acknowledge
  256  the arrests covered by the expunged record, except if when the
  257  subject of the record:
  258         1. Is a candidate for employment with a criminal justice
  259  agency;
  260         2. Is a defendant in a criminal prosecution;
  261         3. Concurrently or subsequently petitions for relief under
  262  this section or s. 943.059;
  263         4. Is a candidate for admission to The Florida Bar;
  264         5. Is seeking to be employed or licensed by or to contract
  265  with the Department of Children and Family Services, the Agency
  266  for Health Care Administration, the Agency for Persons with
  267  Disabilities, or the Department of Juvenile Justice or to be
  268  employed or used by such contractor or licensee in a sensitive
  269  position having direct contact with children, the
  270  developmentally disabled, the aged, or the elderly as provided
  271  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  272  402.302(3), s. 402.313(3), s. 409.175(2)(I), s. 415.102(5)(4),
  273  chapter 916, s. 985.644, chapter 400, or chapter 429;
  274         6. Is seeking to be employed or licensed by the Department
  275  of Education, any district school board, any university
  276  laboratory school, any charter school, any private or parochial
  277  school, or any local governmental entity that licenses child
  278  care facilities; or
  279         7. Is seeking authorization from a seaport listed in s.
  280  311.09 for employment within or access to one or more of such
  281  seaports pursuant to s. 311.12.
  282         Section 8. Paragraph (a) of subsection (4) of section
  283  943.059, Florida Statutes, is amended to read:
  284         943.059 Court-ordered sealing of criminal history records.
  285  The courts of this state shall continue to have jurisdiction
  286  over their own procedures, including the maintenance, sealing,
  287  and correction of judicial records containing criminal history
  288  information to the extent such procedures are not inconsistent
  289  with the conditions, responsibilities, and duties established by
  290  this section. Any court of competent jurisdiction may order a
  291  criminal justice agency to seal the criminal history record of a
  292  minor or an adult who complies with the requirements of this
  293  section. The court shall not order a criminal justice agency to
  294  seal a criminal history record until the person seeking to seal
  295  a criminal history record has applied for and received a
  296  certificate of eligibility for sealing pursuant to subsection
  297  (2). A criminal history record that relates to a violation of s.
  298  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  299  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  300  839, s. 847.0133, s. 847.0135,s. 847.0145, s. 893.135, s.
  301  916.1075, a violation enumerated in s. 907.041, or any violation
  302  specified as a predicate offense for registration as a sexual
  303  predator pursuant to s. 775.21, without regard to whether that
  304  offense alone is sufficient to require such registration, or for
  305  registration as a sexual offender pursuant to s. 943.0435, may
  306  not be sealed, without regard to whether adjudication was
  307  withheld, if the defendant was found guilty of or pled guilty or
  308  nolo contendere to the offense, or if the defendant, as a minor,
  309  was found to have committed or pled guilty or nolo contendere to
  310  committing the offense as a delinquent act. The court may only
  311  order sealing of a criminal history record pertaining to one
  312  arrest or one incident of alleged criminal activity, except as
  313  provided in this section. The court may, at its sole discretion,
  314  order the sealing of a criminal history record pertaining to
  315  more than one arrest if the additional arrests directly relate
  316  to the original arrest. If the court intends to order the
  317  sealing of records pertaining to such additional arrests, such
  318  intent must be specified in the order. A criminal justice agency
  319  may not seal any record pertaining to such additional arrests if
  320  the order to seal does not articulate the intention of the court
  321  to seal records pertaining to more than one arrest. This section
  322  does not prevent the court from ordering the sealing of only a
  323  portion of a criminal history record pertaining to one arrest or
  324  one incident of alleged criminal activity. Notwithstanding any
  325  law to the contrary, a criminal justice agency may comply with
  326  laws, court orders, and official requests of other jurisdictions
  327  relating to sealing, correction, or confidential handling of
  328  criminal history records or information derived therefrom. This
  329  section does not confer any right to the sealing of any criminal
  330  history record, and any request for sealing a criminal history
  331  record may be denied at the sole discretion of the court.
  332         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  333  history record of a minor or an adult which is ordered sealed by
  334  a court of competent jurisdiction pursuant to this section is
  335  confidential and exempt from the provisions of s. 119.07(1) and
  336  s. 24(a), Art. I of the State Constitution and is available only
  337  to the person who is the subject of the record, to the subject’s
  338  attorney, to criminal justice agencies for their respective
  339  criminal justice purposes, which include conducting a criminal
  340  history background check for approval of firearms purchases or
  341  transfers as authorized by state or federal law, to judges in
  342  the state courts system for the purpose of assisting them in
  343  their case-related decisionmaking responsibilities, as set forth
  344  in s. 943.053(5), or to those entities set forth in
  345  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  346  licensing, access authorization, and employment purposes.
  347         (a) The subject of a criminal history record sealed under
  348  this section or under other provisions of law, including former
  349  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  350  deny or fail to acknowledge the arrests covered by the sealed
  351  record, except when the subject of the record:
  352         1. Is a candidate for employment with a criminal justice
  353  agency;
  354         2. Is a defendant in a criminal prosecution;
  355         3. Concurrently or subsequently petitions for relief under
  356  this section or s. 943.0585;
  357         4. Is a candidate for admission to The Florida Bar;
  358         5. Is seeking to be employed or licensed by or to contract
  359  with the Department of Children and Family Services, the Agency
  360  for Health Care Administration, the Agency for Persons with
  361  Disabilities, or the Department of Juvenile Justice or to be
  362  employed or used by such contractor or licensee in a sensitive
  363  position having direct contact with children, the
  364  developmentally disabled, the aged, or the elderly as provided
  365  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  366  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
  367  s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter
  368  429;
  369         6. Is seeking to be employed or licensed by the Department
  370  of Education, any district school board, any university
  371  laboratory school, any charter school, any private or parochial
  372  school, or any local governmental entity that licenses child
  373  care facilities;
  374         7. Is attempting to purchase a firearm from a licensed
  375  importer, licensed manufacturer, or licensed dealer and is
  376  subject to a criminal history check under state or federal law;
  377  or
  378         8. Is seeking authorization from a Florida seaport
  379  identified in s. 311.09 for employment within or access to one
  380  or more of such seaports pursuant to s. 311.12.
  381         Section 9. This act shall take effect July 1, 2010.

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