Florida's battle against mugshot sites just got a huge boost - CS/SB 118: Criminal History Records, a bill sponsored by Senator Greg Steube from District 23, which covers Sarasota County and parts of Charlotte County, was unanimously approved by the Judiciary Committee on January 24, 2017 and moved for review by the Criminal Justice Committee on January 26, 2017.
The Senators who will decide whether this bill goes forward or not are Senators Randolph Bracy (part of Orange County), Dennis Baxley (parts of Marion County, Sumter County, and Lake County), Aaron Bean (all of Nassau County and part of Duval County), Rob Bradley (part of Marion County, all of Levy County, Gilchrist County, Dixie County, Lafayette County, Suwannee County, Columbia County, Baker County, Union County, Bradford County, and Clay County), Jeff Brandes (part of Pinellas County), Jeff Clemens (part of Palm Beach County), and Darryl Ervin Rouson (parts of Pinellas County and Hillsborough County).
CS/SB 118 does two things (among others) - first, it expands the types of dispositions (final judgments) that qualify for an expungement; and, second, it makes it illegal for a mugshot publisher to refuse to remove a mugshot for free, with refusal resulting in a $1,000 per day fine and all attorny fees and costs the person had to spend to get the mugshot removed.
As the law currently stands, a court can order a record to be sealed or expunged. If a court orders a record to be sealed, the general public cannot see the record without some kind of legal right and only certain government agencies still have access to the record. On the other hand, if a court orders a full or partial expunction of a record, any criminal justice agency with a copy of the record must actually physically destroy the record. Only the Florida Department of Law Enforcement (FDLE) is allowed to maintain a copy of the record to make sure future requests to seal or expunge a record are analyzed or to recreate a record, if necessary.
In the state of Florida, a court can expunge the criminal record of only one case. Multiple arrest records and multiple charges can be expunged so long as they are related to the same case. In order to determine if you are eligible, there is first a list of disqualifying charges that must be reviewed. These include sex crimes, crimes that require registration as a sexual offender, violating the Florida Communications Fraud Act, offenses by public officers and employees, human trafficking, and crimes that do not allow for bail, among others.
The next step in the eligiblilty determination will be to determine the criminal history of the applicant. The applicant must never have been found guilty of any criminal charges or comparable municipal ordinance or been adjudicated delinquent for committing any felony or misdemeanor listed in the law.
Additional requirements include having never sealed or expunged a record before (unless the record being expunged is the same that was sealed 10 years prior to the application for expunction), and not being under court supervision in the case being expunged.
Should a person's charges and history qualify, then the applicant is required to obtain a Certificate of Eligibility from the Florida Department of Law Enforcement (FDLE). The application requires submission of several documents. First, a written certified statement from the office of the prosecutor that pursued the case against the applicant must be obtained. That statement should make clear that an indictment, information, or other charging document was not filed or issued in the case, or, if there was one filed, it was dismissed or dropped and none of the charges resulted in a trial, regardless of the outcome of that trial. Additionally, the state prosecutor should state that the applicant does not have a criminal history record that has any of the disqualifying charges.
Once the statement has been obtained, the applicant must send it to the Florida Department of Law Enforcement (FDLE) with a $75 processing fee made payable to the Florida Department of Law Enforcement (FDLE), unless it is waived, as well as a certified copy of the disposition of the case.
Should the Florida Department of Law Enforcement (FDLE) approve the application and issue a Certificate of Eligibility, the applicant must then file a petition for expungement with the court that handled the case that the applicant wants expunged. Along with the petition, the applicant needs to provide a sworn statement that states they have never been found guilty of a crime, and that they have never had a record sealed or expunged before (unless the record being expunged has been sealed for 10 years).
Once the court has entered an order to expunge a criminal history record, the state of Florida's government takes on the role of spreading the news. The clerk of court must first provide a copy of the order to the state attorney or statewide prosecutor (whoever was in charge of prosecuting the case), the arresting agency, and any entity that has ever received a copy of the criminal history record. The arresting agency must keep a copy of the order on hand and the forward copies to any entity they provided the record to previously. Finally, once the Florida Department of Law Enforcement (FDLE) receives a copy of the order, they have to forward a copy to the Federal Bureau of Investigation (FBI).
If an order to expunge a record is issued by a court of competent jurisdiction in Florida, every agency who has a copy of any part of that record must physically destroy those records. The Florida Department of Law Enforcement (FDLE), however, must keep a copy confidential and in a way that is exempt from public records laws.
When a person has their record expunged, the law also provides for a number of important rights. First, they may deny or fail to report the expunged arrests in all but a few circumstances. Those exceptions are the following:
With the publication of mugshots by booking agencies as well as the ease with which websites can scrape these online databases, a cottage industry has popped up in which these mugshots are reposted and the operators of these websites make massive profits from the fees they charge to remove those photos. Some operators remove photos at no cost if they were dropped, the person was found not guilty, or it they were expunged, but others will still charge. Photos posted on one site may be posted to another, causing a domino effect, damaging the reputation of the unconvicted individual.
Thirteen states (California, Colorado, Georgia, Illinois, Kentucky, Maryland, Missouri, Oregon, South Carolina, Texas, Utah, Virginia, and Wyoming) passed laws that prohibit commercial website operators from requiring a fee to remove mugshot photos. Of these thirteen, five of them (Maryland, Oregon, South Carolina, Texas, and Wyoming) require the website operators to remove the photos if the records have been expunged. If a website operator does not abide by the request, civil relief is provided to the individual.
All across the country, people have challenged these mugshot posting websites in court using a number of different theories with varying degrees of success. Some of the different causes of action forwarded by these citizens include invasion of privacy based on false light, invasion of privacy based on unauthorized appropriation of name or likeness, defamation by slander, and unjust enrichment.
In Florida, the courts will most likely result in a successful challenge to any of these mugshot sites, mainly because of a lack of recognized causes of action. In 2008, in Jews for Jesus, Inc. v. Edith Rapp, the Florida Supreme Court ruled that Florida does not recognize tort claims based on false light. The reasoning was "[b]ecause we conclude that false light is largely duplicative of existing torts, but without the attendant protections of the First Amendment." In the same case, however, the Court noted that the key elements of a false claim case are almost the same as a defamation case - which is recognized in Florida.
In Florida, another legal avenue for individuals harmed by the mugshot industry includes the Florida Deceptive and Unfair Trade Practices Act (FDUPTA). When the Florida Legislature enacted the law, they did so to provide consumers and businesses with protections that prohibit unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in trade or commerce.
The Florida Deceptive and Unfair Trade Practices Act (FDUPTA), also known as the "Little FTC Act", is based on its federal counterpart. It gives the State Attorney or the Department of Legal Affairs the power to bring causes of action on behalf of consumers and other groups within the government. Both the State Attorney and Department of Legal Affairs have the right to enforce the law as well. If a government agency doesn't file suit, consumers can do so on their own, through private actions.
In a claim brought under the Florida Deceptive and Unfair Trade Practices Act (FDUPTA), the remedies available to the state enforcing agencies and private individuals are different. The Department of Legal Affairs and the State Attorney have the following options:
For private individuals, their remedies are limited. The options given to people pursuing their own claims are:
The purpose of CS/SB 118 is to expand the types of situations in which an expungement is possible. In particular, cases where a person obtains a verdict of not guilty, whether by judge or jury, will now qualify for expunction. As mentioned above, people who end up going to trial are immediately ineligible, regardless of the verdict.
Beyond the extra ways to now qualify for expungement, CS/SB 118 requires operators of mug shot publication websites to remove a photograph of an individual who makes a written request. The publisher has to remove the photograph, without any fee, within ten calendar days of receiving the written request.
Failure by a mug shot publisher to comply with the request for removal brings serious punishment. Along with an injunction, civil penalties of $1,000 per day and attorney fees and costs can be awarded to an aggrieved individual. Additionally, the full weight of the Florida Deceptive and Unfair Trade Practices Act (FDUPTA) can be brought down on the publisher.
The bill, if passed, will take effect July 1, 2018. The bill may also reduce costs for people who have had their criminal history record expunged. First, publishers will no longer be able to ask for money to remove photos and information. It also allows for a civil cause of action for individuals, with entitlement to attorney fees and costs, against those who refuse to comply.
It is important for those who support the changes being proposed contact each of the State Senators in the Criminal Justice Committee as well as their own State Senator to express their opinion. This is the fifth year in a row in which Florida State Senators have attempted to pass a bill like this, so public support will be crucial.