Exceptions to Disclosure Rule
Exceptions to the law that allows you to deny the arrest occurred after a sealing or expungement
Florida law allows a person to deny that an expunged or sealed arrest has ever occurred. This is the biggest benefit of expunging or sealing a criminal arrest record because so many private companies collect public records (often times sold to them by the county clerk's office) and sell them online. However, there are exceptions to when a person whose arrest record has been expunged or sealed can deny the fact of the arrest. Below is a list of those exceptions.
(a) The person who is the subject of a criminal history record that is [expunged or sealed] under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the expunged record, except when the subject of the record:
1. Is a candidate for employment with a criminal justice agency;
2. Is a defendant in a criminal prosecution;
3. Concurrently or subsequently petitions for relief under this section or s. 943.059;
4. Is a candidate for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the
Department of Children and Family Services or the Department of
Juvenile Justice or to be employed or used by such contractor or
licensee in a sensitive position having direct contact with
children, the developmentally disabled, the aged, or the elderly as
provided in;
s. 110.1127(3);
(3)(a) All positions in programs providing care to children, the developmentally disabled, or vulnerable adults for 15 hours or more per week; all permanent and temporary employee positions of the central abuse hotline; and all persons working under contract who have access to abuse records are deemed to be persons and positions of special trust or responsibility, and require employment screening pursuant to chapter 435, using the level 2 standards set forth in that chapter.
(b) The employing agency may grant exemptions from disqualification from working with children, the developmentally disabled, or vulnerable adults as provided in s. 435.07.
(c) All persons and employees in such positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter.
(d) It is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, for any person willfully, knowingly, or intentionally to:
1. Fail, by false statement, misrepresentation, impersonation, or other fraudulent means, to disclose in any application for voluntary or paid employment a material fact used in making a determination as to such person's qualifications for a position of special trust;
2. Use records information for purposes other than screening for employment or release records information to other persons for purposes other than screening for employment.
(e) It is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, for any person willfully, knowingly, or intentionally to use juvenile records information for any purposes other than specified in this section or to release such information to other persons for purposes other than specified in this section.
s. 393.063;
(15) "Direct service provider," also known as "caregiver" in chapters 39 and 415 or "caretaker" in provisions relating to employment security checks, means a person 18 years of age or older who has direct contact with individuals with developmental disabilities and is unrelated to the individuals with developmental disabilities.
(a) The term "direct service provider" also includes any person, including members of the direct service provider's family, over 12 years of age who resides with the direct service provider when:
1. The direct service provider provides supports or services in his or her residence;
2. The direct service provider provides supports or services in a facility adjacent to his or her residence; or
3. The person residing with the direct service provider has direct contact with the individual with developmental disabilities during the hours of provision of supports or services.
(b) Persons residing with the direct service provider, including family members, who are between the ages of 12 years and 18 years are not required to be fingerprinted, but shall be screened for delinquency records.
(c) A volunteer who assists on an intermittent basis for less than 40 hours per month is not a direct service provider for the purposes of screening if the volunteer is under the direct and constant supervision of persons who meet the personnel requirements of s. 393.0655.
(d) A physician, nurse, or other professional licensed and regulated by the Department of Business and Professional Regulation is not a direct service provider for the purposes of screening if the service he or she is providing to a client is within the scope of practice for which he or she is licensed.
(e) A person selected by the family or the individual with developmental disabilities and paid by the family or the individual to provide supports or services is not a direct service provider for the purpose of screening.
s. 394.4572(1);
(1)(a) The department and the Agency for Health Care Administration shall require employment screening for mental health personnel using the standards for level 2 screening set forth in chapter 435. "Mental health personnel" includes all program directors, professional clinicians, staff members, and volunteers working in public or private mental health programs and facilities who have direct contact with unmarried patients under the age of 18 years.
(b) Students in the health care professions who are interning in a mental health facility licensed under chapter 395, where the primary purpose of the facility is not the treatment of minors, are exempt from the fingerprinting and screening requirements, provided they are under direct supervision in the actual physical presence of a licensed health care professional.
(c) Mental health personnel working in a facility licensed under chapter 395 who have less than 15 hours per week of direct contact with patients or who are health care professionals licensed by the Agency for Health Care Administration or a board thereunder are exempt from the fingerprinting and screening requirements, except for persons working in mental health facilities where the primary purpose of the facility is the treatment of minors.
(d) A volunteer who assists on an intermittent basis for less than 40 hours per month is exempt from the fingerprinting and screening requirements, provided the volunteer is under direct and constant supervision by persons who meet the screening requirements of paragraph (a).
s. 397.451;
Background checks of service provider personnel.--
(1) PERSONNEL BACKGROUND CHECKS; REQUIREMENTS AND EXCEPTIONS.--
(a) Background checks shall apply as follows:
1. All owners, directors, and chief financial officers of service providers are subject to level 2 background screening as provided under chapter 435.
2. All service provider personnel who have direct contact with children receiving services or with adults who are developmentally disabled receiving services are subject to level 2 background screening as provided under chapter 435.
(b) Members of a foster family and persons residing with the foster family who are between 12 and 18 years of age are not required to be fingerprinted but must have their backgrounds checked for delinquency records. Members of the foster family and persons residing with the foster family over 18 years of age are subject to full background checks.
(c) A volunteer who assists on an intermittent basis for fewer than 40 hours per month and is under direct and constant supervision by persons who meet all personnel requirements of this chapter is exempt from fingerprinting and background check requirements.
(d) Service providers that are exempt from licensing provisions of this chapter are exempt from personnel fingerprinting and background check requirements, except as otherwise provided in this section. A church or nonprofit religious organization exempt from licensure under this chapter is required to comply with personnel fingerprinting and background check requirements.
(e) Personnel employed by the Department of Corrections in a substance abuse service component who have direct contact with unmarried inmates under the age of 18 or with inmates who are developmentally disabled are exempt from the fingerprinting and background check requirements of this section.
(f) Service provider personnel who request an exemption from disqualification must submit the request within 30 days after being notified of a pending disqualification. The employment of service provider personnel shall not be adversely affected pending disposition of the request for an exemption. Disapproval of a request for an exemption shall result in the immediate dismissal of the service provider personnel from employment with the provider.
(2) EMPLOYMENT HISTORY CHECKS; CHECKS OF REFERENCES.--The department shall assess employment history checks and checks of references for all owners, directors, and chief financial officers, and the directors shall assess employment history checks and checks of references for each employee who has direct contact with children receiving services or adults who are developmentally disabled receiving services.
(3) PERSONNEL EXEMPT FROM BEING REFINGERPRINTED OR RECHECKED.--
(a) Service provider personnel who have been fingerprinted or had their backgrounds checked pursuant to chapter 393, chapter 394, chapter 402, or chapter 409, or this section, and teachers who have been fingerprinted pursuant to chapter 1012, who have not been unemployed for more than 90 days thereafter and who, under the penalty of perjury, attest to the completion of such fingerprinting or background checks and to compliance with the provisions of this section and the standards contained in chapter 435 and this section, are not required to be refingerprinted or rechecked.
(b) Service provider owners, directors, or chief financial officers who are not covered by paragraph (a) who provide proof of compliance with the level 2 background screening requirements which has been submitted within the previous 5 years in compliance with any other state health care licensure requirements are not required to be refingerprinted or rechecked.
(4) EXEMPTIONS FROM DISQUALIFICATION.--
(a) The department may grant to any service provider personnel an exemption from disqualification as provided in s. 435.07.
(b) Since rehabilitated substance abuse impaired persons are effective in the successful treatment and rehabilitation of substance abuse impaired adolescents, for service providers which treat adolescents 13 years of age and older, service provider personnel whose background checks indicate crimes under s. 817.563, s. 893.13, or s. 893.147 may be exempted from disqualification from employment pursuant to this paragraph.
(c) The department may grant exemptions from disqualification which would limit service provider personnel to working with adults in substance abuse treatment facilities.
(5) PAYMENT FOR PROCESSING OF FINGERPRINTS AND STATE CRIMINAL RECORDS CHECKS.--The employing service provider or the personnel who are having their backgrounds checked are responsible for paying the costs of processing fingerprints and criminal records checks.
(6) DISQUALIFICATION FROM RECEIVING STATE FUNDS.--State funds may
not be disseminated to any service provider owned or operated by an
owner, director, or chief financial officer who has been convicted
of, has entered a plea of guilty or nolo contendere to, or has had
adjudication withheld for, a violation of s. 893.135 pertaining to
trafficking in controlled substances, or a violation of the law of
another state, the District of Columbia, the United States or any
possession or territory thereof, or any foreign jurisdiction which
is substantially similar in elements and penalties to a trafficking
offense in this state, unless the owner's or director's civil rights
have been restored.
History.--s. 3, ch. 93-39; s. 20, ch. 94-134; s. 20, ch. 94-135; s.
46, ch. 94-218; s. 16, ch. 95-152; s. 13, ch. 95-158; s. 36, ch.
95-228; s. 2, ch. 95-407; s. 126, ch. 95-418; s. 9, ch. 96-268; s.
222, ch. 96-406; s. 10, ch. 99-188; s. 12, ch. 2000-320; s. 6, ch.
2002-196; s. 1, ch. 2002-212; s. 986, ch. 2002-387.
s. 402.302(3);
"Child care personnel" means all owners, operators, employees, and volunteers working in a child care facility. The term does not include persons who work in a child care facility after hours when children are not present or parents of children in Head Start. For purposes of screening, the term includes any member, over the age of 12 years, of a child care facility operator's family, or person, over the age of 12 years, residing with a child care facility operator if the child care facility is located in or adjacent to the home of the operator or if the family member of, or person residing with, the child care facility operator has any direct contact with the children in the facility during its hours of operation. Members of the operator's family or persons residing with the operator who are between the ages of 12 years and 18 years shall not be required to be fingerprinted but shall be screened for delinquency records. For purposes of screening, the term shall also include persons who work in child care programs which provide care for children 15 hours or more each week in public or nonpublic schools, summer day camps, family day care homes, or those programs otherwise exempted under s. 402.316. The term does not include public or nonpublic school personnel who are providing care during regular school hours, or after hours for activities related to a school's program for grades kindergarten through 12. A volunteer who assists on an intermittent basis for less than 40 hours per month is not included in the term "personnel" for the purposes of screening and training, provided that the volunteer is under direct and constant supervision by persons who meet the personnel requirements of s. 402.305(2). Students who observe and participate in a child care facility as a part of their required coursework shall not be considered child care personnel, provided such observation and participation are on an intermittent basis and the students are under direct and constant supervision of child care personnel.
s. 402.313(3);
Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss. 402.305(2) and 402.3055. For purposes of screening in family day care homes, the term includes any member over the age of 12 years of a family day care home operator's family, or persons over the age of 12 years residing with the operator in the family day care home. Members of the operator's family, or persons residing with the operator, who are between the ages of 12 years and 18 years shall not be required to be fingerprinted, but shall be screened for delinquency records.
s. 409.175(2)(i);
"Personnel" means all owners, operators, employees, and volunteers working in a child-placing agency, family foster home, or residential child-caring agency who may be employed by or do volunteer work for a person, corporation, or agency which holds a license as a child-placing agency or a residential child-caring agency, but the term does not include those who do not work on the premises where child care is furnished and either have no direct contact with a child or have no contact with a child outside of the presence of the child's parent or guardian. For purposes of screening, the term shall include any member, over the age of 12 years, of the family of the owner or operator or any person other than a client, over the age of 12 years, residing with the owner or operator if the agency or family foster home is located in or adjacent to the home of the owner or operator or if the family member of, or person residing with, the owner or operator has any direct contact with the children. Members of the family of the owner or operator, or persons residing with the owner or operator, who are between the ages of 12 years and 18 years shall not be required to be fingerprinted, but shall be screened for delinquency records. For purposes of screening, the term "personnel" shall also include owners, operators, employees, and volunteers working in summer day camps, or summer 24-hour camps providing care for children. A volunteer who assists on an intermittent basis for less than 40 hours per month shall not be included in the term "personnel" for the purposes of screening, provided that the volunteer is under direct and constant supervision by persons who meet the personnel requirements of this section.
s. 415.102(4);
"Caregiver" means a person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person's guardian that a caregiver role exists. "Caregiver" includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined in subsection (8). For the purpose of departmental investigative jurisdiction, the term "caregiver" does not include law enforcement officers or employees of municipal or county detention facilities or the Department of Corrections while acting in an official capacity.
s. 415.103 Central abuse hotline.-- (exception for sealings only)
(1) The department shall establish and maintain a central abuse hotline that receives all reports made pursuant to s. 415.1034 in writing or through a single statewide toll-free telephone number. Any person may use the statewide toll-free telephone number to report known or suspected abuse, neglect, or exploitation of a vulnerable adult at any hour of the day or night, any day of the week. The central abuse hotline must be operated in such a manner as to enable the department to:
(a) Accept reports for investigation when there is a reasonable cause to suspect that a vulnerable adult has been or is being abused, neglected, or exploited.
(b) Determine whether the allegations made by the reporter require an immediate, 24-hour, or next-working-day response priority.
(c) When appropriate, refer calls that do not allege the abuse, neglect, or exploitation of a vulnerable adult to other organizations that might better resolve the reporter's concerns.
(d) Immediately identify and locate prior reports of abuse, neglect, or exploitation through the central abuse hotline.
(e) Track critical steps in the investigative process to ensure compliance with all requirements for all reports.
(f) Maintain data to facilitate the production of aggregate statistical reports for monitoring patterns of abuse, neglect, or exploitation.
(g) Serve as a resource for the evaluation, management, and planning of preventive and remedial services for vulnerable adults who have been subject to abuse, neglect, or exploitation.
(2) Upon receiving an oral or written report of known or suspected abuse, neglect, or exploitation of a vulnerable adult, the central abuse hotline must determine if the report requires an immediate onsite protective investigation. For reports requiring an immediate onsite protective investigation, the central abuse hotline must immediately notify the department's designated protective investigative district staff responsible for protective investigations to ensure prompt initiation of an onsite investigation. For reports not requiring an immediate onsite protective investigation, the central abuse hotline must notify the department's designated protective investigative district staff responsible for protective investigations in sufficient time to allow for an investigation to be commenced within 24 hours. At the time of notification of district staff with respect to the report, the central abuse hotline must also provide any known information on any previous report concerning a subject of the present report or any pertinent information relative to the present report or any noted earlier reports.
(3) The department shall set standards, priorities, and policies to maximize the efficiency and effectiveness of the central abuse hotline.
Chapter 916 MENTALLY DEFICIENT AND MENTALLY ILL DEFENDANTS
Read chapter. Pertains to working with mentally deficient and/or ill
defendants.
s. 985.644 Departmental contracting powers; personnel standards and screening.--
(1) The Department of Juvenile Justice or the Department of Children and Family Services, as appropriate, may contract with the Federal Government, other state departments and agencies, county and municipal governments and agencies, public and private agencies, and private individuals and corporations in carrying out the purposes of, and the responsibilities established in, this chapter.
(a) When the Department of Juvenile Justice or the Department of Children and Family Services contracts with a provider for any program for children, all personnel, including owners, operators, employees, and volunteers, in the facility must be of good moral character. Each contract entered into by either department for services delivered on an appointment or intermittent basis by a provider that does not have regular custodial responsibility for children and each contract with a school for before or aftercare services must ensure that the owners, operators, and all personnel who have direct contact with children are of good moral character. A volunteer who assists on an intermittent basis for less than 40 hours per month need not be screened if the volunteer is under direct and constant supervision by persons who meet the screening requirements.
(b) The Department of Juvenile Justice and the Department of Children and Family Services shall require employment screening pursuant to chapter 435, using the level 2 standards set forth in that chapter for personnel in programs for children or youths.
Chapter 400(NURSING HOMES AND RELATED HEALTH CARE FACILITIES); or
Chapter 429 (Assisted Care Communities)
6. Is seeking to be employed or licensed by the Department of
Education, any district school board, any university laboratory
school, any charter school, any private or parochial school, or any
local governmental entity that licenses child care facilities; or
7. (Exception for sealings only) Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history background check under state or federal law; or
8. Is seeking authorization from a Florida seaport identified in s. 311.09 for employment within or access to one or more of such seaports pursuant to s. 311.12 or s. 311.125.
(These may be modified by the Florida Legislature. People who have had an arrest record expunged or sealed are governed by the current law in effect.)
To Retain Orlando Criminal Defense Attorney Eric J Dirga
For a free consultation and eligibility analysis please contact us today. We will set up a consultation over the phone or in person to see if you are eligible.
