Bill Text: FL S1012 | 2024 | Regular Session | Comm Sub
Bill Title: Criminal History in Licensing
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Failed) 2024-03-08 - Died in Fiscal Policy [S1012 Detail]
Download: Florida-2024-S1012-Comm_Sub.html
Florida Senate - 2024 CS for CS for SB 1012
By the Committees on Criminal Justice; and Regulated Industries;
and Senator Calatayud
591-02978-24 20241012c2
1 A bill to be entitled
2 An act relating to use of criminal history in
3 licensing; amending s. 112.011, F.S.; defining terms;
4 prohibiting the denial of a license, permit, or
5 certification because of an arrest for a crime not
6 followed by a conviction; authorizing a state agency
7 to defer a decision on an application for a license,
8 permit, or certification pending the resolution of
9 criminal charges against the applicant; revising the
10 circumstances under which a state agency may deny an
11 application for a license, permit, or certification by
12 reason of a prior conviction for a crime; providing
13 the circumstances and mitigating factors that an
14 agency must consider to determine whether granting a
15 license, permit, or certification to a person would
16 pose a direct and substantial risk to public safety;
17 requiring a state agency to provide an applicant with
18 a certain written notification to deny his or her
19 application for a license, permit, or certification on
20 the basis of a prior conviction; authorizing a person
21 to apply to a state agency at any time for a decision
22 as to whether his or her prior conviction disqualifies
23 him or her from obtaining a license, permit, or
24 certification; requiring the state agency to review
25 the application according to specified procedures and
26 make a certain determination; providing that a
27 decision that the person is not disqualified for a
28 specified license, permit, or certification is binding
29 on the agency unless certain conditions exist;
30 authorizing a state agency to charge a specified fee;
31 requiring the state to credit such fee for certain
32 applicants; requiring the agency to advise the person
33 of any actions he or she may take to remedy a
34 disqualification; authorizing a person to submit a
35 revised application reflecting completion of certain
36 actions before a deadline the state agency sets in its
37 decision on the initial application; making technical
38 changes; amending s. 112.0111, F.S.; revising
39 legislative intent; revising state agency reporting
40 requirements; defining the term “conviction”; amending
41 s. 120.60, F.S.; requiring an agency to provide
42 applicants with certain written notice if the agency
43 intends to base its denial of an application for a
44 license on a prior conviction; providing requirements
45 for such notice; authorizing an applicant to submit a
46 rebuttal; requiring the agency to provide written
47 notice of its decision within a specified timeframe
48 after the deadline to submit such rebuttal; providing
49 that such decision is administratively and judicially
50 reviewable; providing requirements for notice of such
51 decision; requiring agencies to allow certain
52 applicants to withdraw their application from
53 consideration within a specified timeframe; providing
54 that such withdrawal is not adverse regulatory action;
55 authorizing notice of withdrawal to be given in
56 conjunction with other notices provided to the
57 applicant; making technical changes; amending ss.
58 310.071, 455.213, 562.13, 626.207, and 648.34, F.S.;
59 conforming provisions to changes made by the act;
60 providing an effective date.
61
62 Be It Enacted by the Legislature of the State of Florida:
63
64 Section 1. Section 112.011, Florida Statutes, is amended to
65 read:
66 112.011 Disqualification from licensing, permitting,
67 certification, and public employment based on criminal
68 conviction.—
69 (1) For purposes of this section, the term:
70 (a) “Conviction” means a determination of guilt which is
71 the result of a plea or trial, regardless of whether
72 adjudication is withheld, under the laws of this state or
73 another state.
74 (b) “Fiduciary duty” means a duty to act for someone else’s
75 benefit while subordinating one’s personal interest to that of
76 the other person.
77 (2)(a) Except as provided in s. 775.16, a person may not be
78 disqualified from employment by the state, any of its agencies
79 or political subdivisions, or any municipality solely because of
80 a prior conviction for a crime. However, a person may be denied
81 employment by the state, any of its agencies or political
82 subdivisions, or any municipality by reason of the prior
83 conviction for a crime if the crime was a felony or first-degree
84 misdemeanor and directly related to the position of employment
85 sought.
86 (b) Notwithstanding any other law, a person may not be
87 denied a license, permit, or certification to pursue, practice,
88 or engage in an occupation, a trade, a vocation, a profession,
89 or a business by reason of the person’s arrest for a crime not
90 followed by a conviction. However, when a person has criminal
91 charges pending that may serve as the basis for the denial of a
92 license, permit, or certification to pursue, practice, or engage
93 in an occupation, a trade, a vocation, a profession, or a
94 business under paragraph (c), a state agency may defer its
95 decision on the person’s application pending resolution of the
96 criminal charges, notwithstanding the 90-day deadline pursuant
97 to s. 120.60(1).
98 (c) Notwithstanding any other law Except as provided in s.
99 775.16, a person may be denied a license, permit, or
100 certification to pursue, practice, or engage in an occupation, a
101 trade, a vocation, a profession, or a business by reason of the
102 prior conviction for a crime only if all of the following apply:
103 1. The crime was:
104 a. A forcible felony as defined in s. 776.08;
105 b. An offense involving a breach of fiduciary duty;
106 c. An offense for a fraudulent practice under chapter 817
107 or a substantially similar offense under the laws of another
108 state;
109 d. A felony or first-degree misdemeanor for which the
110 person was not incarcerated, and he or she was convicted less
111 than 3 years before a state agency began considering his or her
112 application for a license, permit, or certification; or
113 e. A felony or first-degree misdemeanor for which the
114 person was incarcerated, and his or her incarceration ended less
115 than 3 years before a state agency began considering his or her
116 application for the license, permit, or certification.
117 2. The conviction directly and specifically relates to the
118 duties and responsibilities of the occupation, trade, vocation,
119 profession, or business for which the license, permit, or
120 certification is sought.
121 3. A determination is made pursuant to paragraph (e) with
122 clear and convincing evidence that granting the license, permit,
123 or certification would pose a direct and substantial risk to
124 public safety because the person is unable to safely perform the
125 duties and responsibilities of that is directly related to the
126 standards determined by the regulatory authority to be necessary
127 and reasonably related to the protection of the public health,
128 safety, and welfare for the specific occupation, trade,
129 vocation, profession, or business for which the license, permit,
130 or certification certificate is sought.
131 (d)(c) Notwithstanding any law to the contrary, a state
132 agency may not deny an application for a license, a permit, a
133 certification certificate, or employment based solely on the
134 applicant’s lack of civil rights. However, this paragraph does
135 not apply to applications for a license to carry a concealed
136 weapon or firearm under chapter 790.
137 (e) To determine whether granting a license, a permit, or a
138 certification to a person would pose a direct and substantial
139 risk to the public safety under paragraph (c), a state agency
140 must consider the person’s current circumstances and mitigating
141 factors, including all of the following:
142 1. The age of the person when he or she committed the
143 crime.
144 2. The amount of time that has elapsed since the person
145 committed the crime.
146 3. The circumstances surrounding the nature of the crime.
147 4. Whether the person completed his or her criminal
148 sentence, if applicable, and, if completed, the amount of time
149 since completing such sentence.
150 5. Whether the person received a certificate of
151 rehabilitation or good conduct.
152 6. Whether the person completed or is an active participant
153 in a rehabilitative substance abuse program.
154 7. Any testimonials or recommendations, including progress
155 reports from the person’s probation or parole officer.
156 8. Whether the person has received any education or
157 training.
158 9. The person’s employment history and employment
159 aspirations.
160 10. The person’s family responsibilities.
161 11. Whether the occupation, trade, vocation, profession, or
162 business requires that the person be bonded.
163 12. Any other evidence of rehabilitation or information the
164 person submits to the state agency.
165 (f) A state agency may deny the application for a license,
166 permit, or certification to pursue, practice, or engage in an
167 occupation, a trade, a vocation, a profession, or a business
168 based on a person’s prior conviction for a crime only if the
169 state agency provides written notification consistent with s.
170 120.60(3).
171 (g)1. Notwithstanding any other law, a state agency shall
172 allow a person with a prior conviction for a crime to submit an
173 application for a license, permit, or certification at any time,
174 including while in confinement, while under supervision, or
175 before obtaining any required personal qualifications for the
176 license, permit, or certification, for the sole purpose of
177 obtaining a decision on whether the person’s prior conviction
178 for a crime would disqualify him or her from obtaining the
179 license, permit, or certification. In the application, the
180 person must include a record of his or her prior conviction for
181 a crime or must authorize the state agency to obtain such
182 record.
183 2. The state agency shall review the application submitted
184 pursuant to subparagraph 1. to determine whether the person is
185 disqualified from the license, permit, or certification sought.
186 The timing of the agency’s review of the application must be
187 governed by the timeframes set forth in s. 120.60(1). If the
188 state agency determines that the person is not disqualified for
189 the license, permit, or certification sought, the agency must
190 keep a record of that decision for 7 years, unless a longer
191 timeframe is prescribed by law. Such decision that the person is
192 disqualified must be binding on the agency if the person
193 subsequently completes an application for the license, permit,
194 or certification after obtaining the required personal
195 qualifications within 7 years, unless a longer timeframe is
196 prescribed by law, during which time the 90-day timeframe set
197 forth in s. 120.60(1) must be tolled. However, the agency’s
198 decision may not be binding on a subsequently completed
199 application if the information provided by the applicant
200 pursuant to subparagraph 1. is found to be inaccurate or if the
201 person was subsequently convicted of a disqualifying crime.
202 3. For a person to submit an application pursuant to
203 subparagraph 1., the state agency may charge the fee ordinarily
204 required by law to submit an initial application for the
205 license, permit, or certification, or a portion thereof.
206 However, if the state agency determines that the person is not
207 disqualified for the license, permit, or certification pursuant
208 to subparagraph 2. and the person subsequently submits a
209 completed application after obtaining the required personal
210 qualifications, the fee charged pursuant to this subparagraph
211 must be credited as a nonrefundable deposit toward the fee
212 ordinarily required by law to submit an annual renewal
213 application for the license, permit, or certification.
214 4. If the state agency determines that an applicant
215 pursuant to subparagraph 1. is disqualified for a license,
216 permit, or certification, the agency must advise the person of
217 any action he or she may take, if any, to remedy the
218 disqualification. The person may submit a revised application
219 reflecting completion of any remedial actions before a deadline
220 set by the agency in its decision on the application.
221 (3)(a)(2)(a) This section does not apply to any law
222 enforcement or correctional agency.
223 (b) This section does not apply to the employment practices
224 of any fire department relating to the hiring of firefighters.
225 (c) This section does not apply to the employment practices
226 of any county or municipality relating to the hiring of
227 personnel for positions deemed to be critical to security or
228 public safety pursuant to ss. 125.5801 and 166.0442.
229 (4)(3) Any complaint concerning the violation of this
230 section shall be adjudicated in accordance with the procedures
231 set forth in chapter 120 for administrative and judicial review.
232 Section 2. Section 112.0111, Florida Statutes, is amended
233 to read:
234 112.0111 Restrictions on the employment of ex-offenders;
235 legislative intent; state agency reporting requirements.—
236 (1) The Legislature declares that a goal of this state is
237 to clearly identify the occupations from which ex-offenders are
238 disqualified based on the nature of their offenses. The
239 Legislature seeks to make employment opportunities available to
240 ex-offenders in a manner that preserves and protects serves to
241 preserve and protect the health, safety, and welfare of the
242 general public, yet encourages ex-offenders them to become
243 productive members of society. To this end, state agencies that
244 exercise regulatory authority are in the best position to
245 identify all restrictions on employment imposed by the agencies
246 or by boards that regulate professions and occupations and are
247 obligated to protect the health, safety, and welfare of the
248 general public by clearly setting forth those restrictions in
249 keeping with statutory standards and protections determined by
250 the agencies to be in the least restrictive manner.
251 (2) Beginning March 1, 2025, and annually thereafter, each
252 state agency, including, but not limited to, those state
253 agencies responsible for issuing licenses, permits, or
254 certifications to pursue, practice, or engage in an occupation,
255 a trade, a vocation, a profession, or a business must post and
256 maintain publicly on its website professional and occupational
257 regulatory boards, shall ensure the appropriate restrictions
258 necessary to protect the overall health, safety, and welfare of
259 the general public are in place, and by December 31, 2011, and
260 every 4 years thereafter, submit to the Governor, the President
261 of the Senate, and the Speaker of the House of Representatives a
262 report that includes all of the following:
263 (a) The total number of applications received by the state
264 agency in the previous calendar year for a license, permit, or
265 certification from applicants who had a prior conviction, or any
266 other adjudication, for a crime A list of all agency or board
267 statutes or rules that disqualify from employment or licensure
268 persons who have been convicted of a crime and have completed
269 any incarceration and restitution to which they have been
270 sentenced for such crime.
271 (b) Out of the number of applications received in paragraph
272 (a), the number of times the state agency denied, withheld, or
273 refused to grant an application because of an applicant’s prior
274 conviction, or any other adjudication, of a crime. The report
275 must also specify the crimes on which each decision to deny,
276 withhold, or refuse to grant an application for a license,
277 permit, or certification was based A determination of whether
278 the disqualifying statutes or rules are readily available to
279 prospective employers and licensees.
280 (c) Out of the number of applications received in paragraph
281 (a), the number of times the state agency granted an application
282 in which the applicant had a prior conviction, or any other
283 adjudication, of a crime. The report must also specify the
284 crimes in such applications which were not used as a basis for
285 denial The identification and evaluation of alternatives to the
286 disqualifying statutes or rules which protect the health,
287 safety, and welfare of the general public without impeding the
288 gainful employment of ex-offenders.
289 (d) The information provided by the state agency under
290 paragraphs (a), (b), and (c), broken down by the specific type
291 of application submitted and the types of licenses, permits, or
292 certifications sought, including if the applicant is a resident
293 of the state or is an out-of-state resident.
294 (e) Any other information or data the state agency deems
295 relevant in fulfilling its purpose under this section.
296 (3) For the purposes of this section, the term “conviction”
297 means a determination of guilt which is the result of a plea or
298 trial, regardless of whether adjudication is withheld.
299 Section 3. Subsection (3) of section 120.60, Florida
300 Statutes, is amended, and subsection (8) is added to that
301 section, to read:
302 120.60 Licensing.—
303 (3)(a) Each applicant must shall be given written notice,
304 personally or by mail, that the agency intends to grant or deny,
305 or has granted or denied, the application for license; however,
306 if the agency intends to deny the application for license based
307 upon a person’s prior conviction for a crime pursuant to s.
308 112.011, the agency must first provide the applicant with
309 written notice of the agency’s intention as stated in paragraph
310 (b). The notice required by this paragraph must state with
311 particularity the grounds or basis for the issuance or denial of
312 the license, except when issuance is a ministerial act. Unless
313 waived, a copy of the notice must shall be delivered or mailed
314 to each party’s attorney of record and to each person who has
315 made a written request for notice of agency action. Each notice
316 must inform the recipient of the basis for the agency decision,
317 inform the recipient of any administrative hearing pursuant to
318 ss. 120.569 and 120.57 or judicial review pursuant to s. 120.68
319 which may be available, indicate the procedure that must be
320 followed, and state the applicable time limits. The issuing
321 agency shall certify the date the notice was mailed or
322 delivered, and the notice and the certification must be filed
323 with the agency clerk.
324 (b)1. The agency may deny an application for license based
325 upon a person’s prior conviction for a crime consistent with s.
326 112.011 only if the agency provides the applicant with written
327 notice, in person or by mail, of its intention to deny the
328 application. The notice must state with particularity the
329 grounds or the basis for the agency’s intention to deny the
330 license. The notice must inform the recipient that, before the
331 denial becomes final, he or she may provide a rebuttal with
332 additional evidence of mitigating circumstances or
333 rehabilitation, including written support provided by character
334 witnesses. Pursuant to subsection (1), the agency must allow the
335 applicant at least 30 days to provide a rebuttal before issuing
336 a decision on the application for license. A copy of the notice
337 must be delivered or mailed to each party’s attorney of record,
338 if applicable, and to each person who has made a written request
339 for notice of agency action. The agency shall certify the date
340 the notice was delivered or mailed, and the notice and the
341 certification must be filed with the agency clerk.
342 2. The agency shall provide written notification of its
343 decision on the application for license within 60 days after the
344 deadline for submitting a rebuttal. If the agency denies or
345 intends to deny the application for license, the agency must
346 specify the clear and convincing evidence on which the agency
347 based its determination. The agency’s decision is
348 administratively reviewable pursuant to ss. 120.569 and 120.57
349 and judicially reviewable pursuant to s. 120.68. The
350 notification must indicate the procedure and applicable time
351 limits that must be followed to seek administrative review, and
352 must state the earliest date that the applicant may submit
353 another application for license. A copy of the notice must be
354 delivered or mailed to each party’s attorney of record, if
355 applicable, and to each person who has made a written request
356 for notice of agency action. The agency shall certify the date
357 the notice was mailed or delivered, and the notice and the
358 certification must be filed with the agency clerk.
359 (8) Notwithstanding any other law, before formally denying
360 an application for a license, a state agency must give the
361 applicant 21 days to withdraw the application from
362 consideration. Such withdrawal may not be considered as an
363 adverse regulatory action in any future application. Notice of
364 the right to withdraw may be given in conjunction with other
365 notices of rights pursuant to this chapter.
366 Section 4. Subsection (4) of section 310.071, Florida
367 Statutes, is amended to read:
368 310.071 Deputy pilot certification.—
369 (4) The board must follow the requirements in s. 112.011(2)
370 before Notwithstanding s. 112.011 or any other provision of law
371 relating to the restoration of civil rights, an applicant may
372 shall be disqualified from applying for or and shall be denied a
373 deputy pilot certificate if the applicant, regardless of
374 adjudication, has ever been found guilty of, or pled guilty or
375 nolo contendere to, a charge which was:
376 (a) A felony or first degree misdemeanor which directly
377 related to the navigation or operation of a vessel; or
378 (b) A felony involving the sale of or trafficking in, or
379 conspiracy to sell or traffic in, a controlled substance as
380 defined by chapter 893, or an offense under the laws of any
381 state or country which, if committed in this state, would
382 constitute the felony of selling or trafficking in, or
383 conspiracy to sell or traffic in, such controlled substance.
384 Section 5. Subsections (3) and (11) of section 455.213,
385 Florida Statutes, are amended to read:
386 455.213 General licensing provisions.—
387 (3)(a) Notwithstanding any other law, the applicable board
388 shall use the process in s. 112.011(2) this subsection for
389 review of an applicant’s criminal record to determine his or her
390 eligibility for licensure as:
391 1. A barber under chapter 476;
392 2. A cosmetologist or cosmetology specialist under chapter
393 477;
394 3. Any of the following construction professions under
395 chapter 489:
396 a. Air-conditioning contractor;
397 b. Electrical contractor;
398 c. Mechanical contractor;
399 d. Plumbing contractor;
400 e. Pollutant storage systems contractor;
401 f. Roofing contractor;
402 g. Sheet metal contractor;
403 h. Solar contractor;
404 i. Swimming pool and spa contractor;
405 j. Underground utility and excavation contractor; or
406 k. Other specialty contractors; or
407 4. Any other profession for which the department issues a
408 license, provided the profession is offered to inmates in any
409 correctional institution or correctional facility as vocational
410 training or through an industry certification program.
411 (b)1. A conviction, or any other adjudication, for a crime
412 more than 5 years before the date the application is received by
413 the applicable board may not be grounds for denial of a license
414 specified in paragraph (a). For purposes of this paragraph, the
415 term “conviction” means a determination of guilt that is the
416 result of a plea or trial, regardless of whether adjudication is
417 withheld. This paragraph does not limit the applicable board
418 from considering an applicant’s criminal history that includes a
419 crime listed in s. 775.21(4)(a)1. or s. 776.08 at any time, but
420 only if such criminal history has been found to relate to the
421 practice of the applicable profession.
422 2. The applicable board may consider the criminal history
423 of an applicant for licensure under subparagraph (a)3. if such
424 criminal history has been found to relate to good moral
425 character.
426 (c)1. A person may apply for a license before his or her
427 lawful release from confinement or supervision. The department
428 may not charge an applicant an additional fee for being confined
429 or under supervision. The applicable board may not deny an
430 application for a license solely on the basis of the applicant’s
431 current confinement or supervision.
432 2. After a license application is approved, the applicable
433 board may stay the issuance of a license until the applicant is
434 lawfully released from confinement or supervision and the
435 applicant notifies the applicable board of such release. The
436 applicable board must verify the applicant’s release with the
437 Department of Corrections before it issues a license.
438 3. If an applicant is unable to appear in person due to his
439 or her confinement or supervision, the applicable board must
440 allow permit the applicant to appear by teleconference or video
441 conference, as appropriate, at any meeting of the applicable
442 board or other hearing by the agency concerning his or her
443 application.
444 4. If an applicant is confined or under supervision, the
445 Department of Corrections and the applicable board must shall
446 cooperate and coordinate to facilitate the appearance of the
447 applicant at a board meeting or agency hearing in person, by
448 teleconference, or by video conference, as appropriate.
449 (c)(d) Each applicable board shall compile a list of crimes
450 that, if committed and regardless of adjudication, do not relate
451 to the practice of the profession or the ability to practice the
452 profession and do not constitute grounds for denial of a
453 license. This list must be made available on the department’s
454 website and updated annually. Beginning October 1, 2019, each
455 applicable board shall compile a list of crimes that although
456 reported by an applicant for licensure, were not used as a basis
457 for denial. The list must identify for each such license
458 application the crime reported and the date of conviction and
459 whether there was a finding of guilt, a plea, or an adjudication
460 entered or the date of sentencing.
461 (d)(e) Each applicable board shall compile a list of crimes
462 that have been used as a basis for denial of a license in the
463 past 2 years and shall make the list available on the
464 department’s website. Starting October 1, 2019, and updated
465 quarterly thereafter, the applicable board shall compile a list
466 indicating each crime used as a basis for denial. For each crime
467 listed, the applicable board shall must identify the date of
468 conviction, finding of guilt, plea, or adjudication entered, or
469 date of sentencing. Such denials must be made available to the
470 public upon request.
471 (11) For any profession requiring fingerprints as part of
472 the registration, certification, or licensure process or for any
473 profession requiring a criminal history record check to
474 determine good moral character, the fingerprints of the
475 applicant must accompany all applications for registration,
476 certification, or licensure. The fingerprints must shall be
477 forwarded to the Division of Criminal Justice Information
478 Systems within the Department of Law Enforcement for processing
479 to determine whether the applicant has a criminal history
480 record. The fingerprints must shall also be forwarded to the
481 Federal Bureau of Investigation to determine whether the
482 applicant has a criminal history record. The information
483 obtained by the processing of the fingerprints by the Department
484 of Law Enforcement and the Federal Bureau of Investigation must
485 shall be sent to the department to determine whether the
486 applicant is statutorily qualified for registration,
487 certification, or licensure.
488 Section 6. Paragraph (a) of subsection (3) of section
489 562.13, Florida Statutes, is amended to read:
490 562.13 Employment of minors or certain other persons by
491 certain vendors prohibited; exceptions.—
492 (3)(a) It is unlawful for any vendor licensed under the
493 beverage law to employ as a manager or person in charge or as a
494 bartender any person:
495 1. Who has been convicted within the last past 5 years of
496 any offense against the beverage laws of this state, the United
497 States, or any other state.
498 2. Who has been convicted within the last past 5 years in
499 this state or any other state or the United States of soliciting
500 for prostitution, pandering, letting premises for prostitution,
501 keeping a disorderly place, or any felony violation of chapter
502 893 or the controlled substances act of any other state or the
503 Federal Government.
504 3. Who has, in the last past 5 years, been convicted of any
505 felony in this state, any other state, or the United States.
506
507 The term “conviction” shall include an adjudication of guilt on
508 a plea of guilty or nolo contendere or forfeiture of a bond when
509 such person is charged with a crime.
510 Section 7. Subsection (9) of section 626.207, Florida
511 Statutes, is amended to read:
512 626.207 Disqualification of applicants and licensees;
513 penalties against licensees; rulemaking authority.—
514 (9) Section 112.011(2) applies 112.011 does not apply to
515 any applicants for licensure under the Florida Insurance Code,
516 including, but not limited to, agents, agencies, adjusters,
517 adjusting firms, or customer representatives.
518 Section 8. Subsection (7) of section 648.34, Florida
519 Statutes, is amended to read:
520 648.34 Bail bond agents; qualifications.—
521 (7) Section 112.011(2) applies The provisions of s. 112.011
522 do not apply to bail bond agents or to applicants for licensure
523 as bail bond agents.
524 Section 9. This act shall take effect July 1, 2024.
