(850)443-2951
bpoitevent@msn.com
LEGISLATIVE UPDATE
WEEK 2
3/14/08
Common
Issues:
The legislative session this year is
focused on budget matters. The economic downturn in the state has the Governor
and the legislature scrambling to find money to balance the budget, a
constitutional requirement.
To identify the necessary savings, the
legislature has submitted inquiries to all state agencies in an attempt to
identify "available" funds and where cuts can be instituted. The mood is desperate and the legislative
budget committees have undertaken sever measures to find around $2 billion.
The Governor has recommended that $2
million of that come from the Div of Licensing trust fund. Yesterday, in his
presentation to the Senate Appropriations Committee, Commissioner Bronson
proposed the $2 million "sweep" from the Div of Licensing trust fund.
That grab of licenses' money will be the single largest source of funds
"found" by the Department of Ag to meet the funding goals requested
of the Department by the legislature.
How that "sweep" of the trust fund will impact Div operations,
present or future, remains to be seen. The final decision on whether or not
that money will be taken out of the trust fund will be made later in the
legislative session.
The Division's policy on the wearing
of firearms by licensed Class G security officers continues to be a
controversial matter. The basis of the
controversy is the division's interpretation of what constitutes "....in
connection with those duties" as that term is used a Sec. 493.6115(3). The
Div interprets it very narrowly to mean an armed officer must remove his weapon
if he or she leaves the actual duty station. That interpretation extends to
prohibiting armed officers from carrying their weapon when they go to eat, to
the restroom, while gassing up the company vehicle, or while enroute to or from
the duty station, regardless of duty requirements. An armed officer assigned to
a guarded gate must remove his firearm if he leaves the gate area for any
reason.
Now a case has come up where the Div
investigator has determined that armed supervisors should have removed their
firearms while the supervisors were in the course of conducting a site survey
of a property in a high crime area in which their agency had a pending
contractual interest.
The security industry strongly
supports severe penalties for licensees who improperly exhibit or handle their
firearms in an immature, dangerous or unprofessional manner. However, the
implementation or continuation of an overreaching and repressive policy that
creates siginificant operational dangers to licensees and the public is
counterproductive and is unsound regulatory practice.
The Division's firearms policy is
equally applicable to the PI profession. It leaves open for Div interpretation
when and where an armed PI in on duty.
For instance, must a PI remove and secure his firearm when he is enroute
to a surveillance or an interview? May he or she continue to wear the firearm
when headed home? Those are just a few
of the unanswered questions currently being left to the Division's
interpretation of the law. Remember, a
legal interpretation by the Div is valid only until it is either changed by the
Division or overturned by a higher authority, the courts.
At the request of the security
industry, this matter will be on the agenda for the PIRSAC meeting scheduled
for Miami on March 27. It is a matter that should be of great professional
interest to security officers and private investigators who also possess a
Class G statewide firearms license.
A less repressive, more operationally
viable policy is the objective. A
policy should punish the violators, not the entire industry.<
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Private
Investigations:
Our legislation regarding window
tinting is moving well. As currently written, the bill will allow the use of
darkest tint (limo tint) on vehicles owned or leased by a licensed PI Agency.
It will primarily benefit those PIs who conduct vehicle surveillances and video
surveillances in agency owned vehicles. It is intended to reduce the compromise
rates of such activities.
For those of you who has asked where
our bill is, the answer is we don't have one. The window tinting has been
amended to the DMV legislative package. If you want to view that rather lengthy
bill go to the legislative site and look under Senate bill 1992. Our wording is
found at lines 393-402. That bill passed the first Senate committee
Wednesday. It only has one more
committee reference.
In the House, our language was amended
on to the House DMV package yesterday. That bill number is HB 1111. It passed
out of the House Infrastructure committee yesterday and no opposition is
anticipated.
Yesterday, I met with Rep. Planas,
sponsor of House bill 943. That bill
deals with the Capital Collateral Regional Counsels around the state, Ch 27 of
the Florida Statutes. That is the
agency that exists to represent criminal defendants who have been sentenced to
death by the trial courts. Its real purpose is to speed up the appeal process.
Current legislation at Sec. 27.711
allows the appointed attorneys to use "investigators" to assist them
in their appeal cases. That language is referring to outside rather than
in-house investigators and fails to require licensure as a PI. At the conclusion of our meeting, Rep Planas
agreed to amend his bill to correct this apparent disregard of the licensing
requirements of Ch. 493. He was provided the language to do that.
This situation is not uncommon. There have been and there still are statutes
addressing investigative or security services that are in conflict with Ch.
493. When we find them we move to eliminate them from state laws or amend them
to require proper licensure, or get state agencies to change their policies or
procedures. Another example is the Department of Management Services allows
unlicensed investigative and security companies to bid on state contracts, a
clear violation of Ch. 493.
Regarding the ongoing effort to get
clarifying language from the state Department of Revenue about PI's being required to
collect the sales/use tax for PI services provided to law firms. The legal community is exempt from the
requirement to collect and remit the tax.
The issue is whether or not law firms should have to pay the tax to PI's
when they have no statutory authority to collect it from their client. I have
done a lot of research on this issue and met with a firm in Jax that has agreed
to file the request for an opinion from DOR.
However, this effort has taken second chair to my lobbying duties and I expect
I will not do much more on it until after the session.
Private
Security:
The primary thrust of the security
industry this year is, of course, legislation to authorize licensed security
officers to "detain and hold" criminal suspects for law enforcement.
The language requires the officer be in uniform and to be on the client's
property.
The bill is scheduled for hearings
later in the session, but has no apparent opposition.
Our sonsor in the Senate, Sen. Victor
Crist, is a strong advocate and friend of the security industry. His stature in
the Senate is well recognized.
Yesterday, I was able to tender
FASCO's support of another Crist bill that offers greater protection to law
enforcement officers by eliminating the defense that the officer committed a
violation of the law in the course of his arrest. The bill will allow the court
to disregard that defense if the officers actions are found to have been in
good faith. It was an excellent
opportunity for the security profession to support law enforcement. The Florida Sheriff's Association also went
on record as being in support and thanked me for our support. Sen Crist
appreciated our support also. It was an excellent opportunity for FASCO to
partially return his sponsorship of our legislation.
Political
Contributions:
In response to those of you who have
indicated a desire to make campaign contributions to various legislators,
please hold them until after the session ends, currently scheduled for May
2. Under Florida law legislators are
prohibited from accepting contributions during the session.
Thank you to those of you who have
previously contributed. Contributions are the lifeblood of the campaign process
and are not usually forgotten. On your behalf I have attended various
fundraisers leading up to this session. Your contributions are always well
received. Thanks to those of you who have chosen to support your profession
through your contributions.
Our overall objective during each
legislative session is to give the investigative and security professions a
strong presence, a high visibility. It
is to make certain the legislators come to know and respect those
professions. A constant presence
throughout the year through contributions is one way to do that. Another way to for your lobbyist to always
be there, to be the source of information to the legislators. Once they
recognize the role of our professions in our society, especially since 9/11,
the more they listen when we speak. Recognition, access and credibility are our
primary tools.
Please let me know if you wish to make
a contribution. I will be happy to make
a recommendation of a recipient who will be most beneficial to the security and
investigative professions.
I will be calling on some of you to
come to Tallahassee for appearances before legislative committees in support of
our legislation. Thanks to those of you who have offered your expertise, it
makes a difference.
Ben Poitevent, ESQ.
850-443-2951
Posted January 17, 2008
The following recent case decisions may be beneficial to your agency
operations:
1. Generally, workers comp won't cover Florida employees when they're
injured after leaving the workplace. But that's not the case if the
employee left the premisies in an emergency to save life or property
related to the business.
When an employee pursued
a suspect in the theft of company property and the pursuit continued off
the company property and the employee was injured. On appeal the court ruled that such activity means the
employee was considered to be at work and ordered benefits. (Deutsch v. Heritage Automotive Enterprises, No. 1D05-660,
Court of Appeals of Florida.)
2. Employers who are sued may access the personnel records of prior
employers to determine if the employee has a history of filing frivolous actions.
Florida employers who are sued can subpoena personnel records
of prior employers.
"Prior complaints of discrimination, harassment or allegations could be relevant if the evidence
shows such claims were frivolous."
(Maxwell v. Health Center of lake City, No 3:05-CV1056, MD FL.)
Ben Poitevent, Esq.
Lobbyist for the Private Security Industry
Private Security Officer Emp. Authorization Act. PSOEAA File
NOTICE: You must have Adobe Acrobat Reader To Open This File.
You may down-load it from Adobe.com
Legislative Update - Posted 13Feb2007
SEARCH
Criminal History Workshop
On February 12,
2007, Florida Association of Security Companies (FASCO) sent a representative to
Washington DC to attend a Workshop on Expanding Access to Criminal History
Information and Improving Criminal Record Backgrounding held by the Bureau of
Justice Statistics, US Department of Justice, Office of Justice Programs
and the National Crime Prevention and Privacy Compact Council.
Meeting Reference
Material: Public Law 92-544, Privacy Act of 1974, Fair Credit Reporting
Act (FCRA), Section 613, National Child Protection Act (NCPA)/Volunteers for
Children Act (VCA), Equal Employment Opportunity Commission Compliance Manual,
Section 15, pages 29-30, Conviction and Arrest Records, The National Crime
Prevention and Privacy Compact.
The Workshop was
separated into four panels which discussed specific topics. Please find
highlights of each panel discussion listed below:
- Panel One
- Expanding Access to Criminal History Record Information for
Background Checks -
- Allow employers access after submitting an
application and receiving approval from the FBI for access. May allow
applicant access prior to employer to check for accuracy of the
report
- May set up a system similar to the Credit Report
process whereby an individual can have a copy of their FBI criminal record each
year to review for accuracy. May establish an appeal
process.
- State Repositories do not have the capability to handle future requests
on a State level.
- Information received from States must be
accurate and complete records.
- A cost for obtaining these FBI Criminal
Background Records will need to be established.
- Flat capture of prints in addition to live-scan
prints will be authorized.
- The FBI will need to add personnel and
upgrade systems to handle additional requests. FBI would also be required
to develop a policy and procedure for use of the CHRI and implement privacy
protections.
- The FBI would establish a 1-800 number and
website to assist employers and applicants in reading the CHRI obtained from the
FBI. The FBI may also standardize the rap sheet for easier
understanding.
- Only 50% of information listed on the FBI system
lists dispositions.
- Would require background checks to have a three
(3) day turnaround period.
- Critical Infrastructure businesses require
accurate and complete background checks and are vital to our Homeland
Security.
- States will have an option to opt in or out of
the program. If they opt out, employer may go to another State that has
opted in to the program or go directly to the FBI.
- Currently there are 19 agencies that have been
approved by CJIS as a channeling agency.
- Fingerprint based CHRI is much more accurate
than name search background checks.
- Currently, approximately 84-92% of employers
conduct some kind of background checks on their perspective employees. Pre
911 the emphasis was on Drug Free, Post 911 the emphasis is on
Criminal.
- Companies represented did not object to a
reasonable fee in order to gain accurate and complete background information on
an applicant. Most companies currently pay large fees to gain State,
County,and
City background checks that are not always accurate and complete. A big
issue lies in applicants not disclosing all States of residence causing
incomplete background information.
- Panel Two -
Privacy an Consumer Protections
- Must enter into user agreements with companies
requesting access to the FBI CHRI. Companies can not re-disseminate
information received.
- Notice of Subject to Consent needs to be
received prior to the request for CHRI being sent. Describe scope of
check, appeal process, access and review of record received.
- Questions 1) is the criminal record public information, 2) how recent is
the information received, 3) what crimes are listed, 4) what type of information
is released, 5) is the information released accurate,
6) are juvenile records released, 7) is
information used for negligent hiring.
- Employers have a right to know the background of
the people they are employing and should not discriminate or eliminate based
upon CHRI received. Minor infractions may be allowable based upon
each
individual company standards.
- Applicant has a right to know what information
is being disclosed to possible employer and if the information disclosed is
accurate. Applicant also should have the right to dispute inaccurate
information.
- May only show the past seven (7) years of
criminal history.
- A comment was made that more FCRA interaction
needs to be present when releasing CHRI.
- Some members on this panel did not feel that
everyone required access to CHRI and maybe should be allowed on a case by case
basis...
- Everyone who has access to the information
should be screened and audits should be scheduled to ensure that employers are
following proper protocols.
- Full file disclosure should be instituted
allowing applicant access to all information being provided to
employer.
- Issue was brought up concerning re-entry of
individuals who have served time in prison for various offenses. Access to
FBI CHRI may prohibit these individuals from finding
employment
- Employers should be held liable for protecting
information received.
- Panel Three
- Screening Standards
- Protecting public vs.. protecting individuals
privacy and re-entry into the community
- It was mentioned that Florida has a re-entry
task force that investigates who was denied employment due to criminal record
results.
- Florida Department of Law Enforcement received
2.3 million requests for CHRI last year.
- Employer should determine what
criminal offenses previously committed by an applicant would affect their
work duties. Should not eliminate consideration if offense would not
directly affect performance.
- Create a more unified checking process to
include ALL State Repositories and FBI.
- Second Chance Act - Identifies States to
evaluate their Statutes to give another chance to convicted
persons.
- Should not allow criminal record information
which exceeds seven (7) years to be sent to employers. Possibly follow the
same reporting structure as the FCRA.
- The FBI is trying to clean up
dispositions by requesting State and Federal Courts to send
dispositions when received.
- The FBI reported that 33 states are willing to
supply State information for IAFIS.
- Panel Four
- Suitability Criteria
- The Attorney Generals Report on Criminal History
Background Checks recognizes the delicate balance between protecting the
workplace through judicious use of criminal record background checks
and
the need to give certain applicants a
second chance despite their past criminal histories. While the report
recommends expanding CHRI access to all employers, it also recommends that users
of the
information certify that it will not be
used in violation of applicable equal employment opportunity laws and
regulations.
- Employers are encouraged to consider the nature
and gravity of an offense, the time that has passed since conviction or
completion of the sentence, and the nature of the job being sought when
determining the relevance of convictions in
hiring decisions.
- The Attorney General's report also suggests that
Congress may want to consider whether guidance should be provided to employers
on appropriate time limits that should be observed when specifying
disqualifying offenses and on allowing an
individual the opportunity to seek a waiver from the
disqualification.
If you would like additional information on the workshop outlined above,
you may be able to obtain additional information from SEARCH at the following
address; www.search.org, 7311
Greenhaven Drive, Suite 145, Sacramento, CA 95831. FASCO will
continue to follow this important topic and will keep updates listed on our
website.
©Copyright 2008 Florida Association of Security Companies, all rights reserved.