Jessica’s Law, which was enacted to protect children in Florida from sexual predators, is causing unintended consequences for contractors because of Level 2 screening requirements if they work on school campuses.
“There is agreement from all parties [i.e. school districts, House, Senate, affected contractors] that the bill needs to be amended,” said Amanda Cannon, a spokesperson of the Florida Senate’s Criminal Justice Committee.
Cannon, who helped draft Jessica’s Law, said the affected parties cannot agree on how to amend the law, which became effective Sept. 1.
The law, passed following the murder of 9-year-old Jessica Lunsford in Florida earlier this year, was signed by Gov. Jeb Bush in May.
Jessica’s Law deals with “active” school sites. Any school site (which has a multitude of definitions) with school children (including charter schools) has to apply Level 2 checks to all vendor employees and employees of subcontractors.
It requires contractors to pay $60 to $70 to screen each of its workers. That could be substantial if they have to be screened in various districts.
A Level 2 background check compares fingerprint records against criminal and juvenile records kept by the Florida Department of Law Enforcement and the FBI.
The law requires virtually spotless criminal records. Anyone paid by a school board for services of any kind must meet a Level 2 background check before they can walk onto a campus when students are present.
An existing school with renovations or additions done during the summer when no children are present would be exempted from Jessica’s Law until the children returned. This is the same for weekend or evening work when no children are present. New construction, when there is no adjoining active school campus, is not technically included in the law. However, warranty or service work by contractors when school is occupied falls under the law.
Under provisions of the law, school districts are required to conduct Level 2 background screenings on instructional and non-instructional personnel and contractors who have direct contact with students or have access to school grounds when children are present.
The main issue raised in the aftermath of its passage relates to the portion of the legislation that pertains to contractors who have access to school grounds when children are present. Many contractors work at multiple school districts concurrently. Many have found it cost prohibitive and logistically difficult to have to submit fingerprints to each district within a contemporaneous timeframe.
Florida’s Department of Law Enforcement has been asked by the legislature to implement a system that would allow criminal history information provided to one school district to be shared with other districts. The system gives school districts an automated option for sharing criminal history information with other school districts. However, school districts are not mandated to use the system.
Cannon said Republican Sen. Nancy Argenziano, who introduced Jessica’s Law in the Senate, filed a bill for a recently concluded special session to amend the act.
“The House didn’t want to do it during a special session,” added Cannon.
The special session began Dec. 5 and concluded Dec. 9. Its purpose was to implement Medicaid reforms and authorize, regulate and tax slot machines.
As a result, the earliest chance to amend Jessica’s Law appears to be during the Florida legislature’s regular session, which begins March 7.
Cannon said “different stakeholders” and/or camps have proposed various ways to change the law. One group wants to get rid of FBI and state fingerprint checks and do predator checks.
“This type of records check is not acceptable to Sen. Argenziano,” added Cannon.
According to Cannon, a second group is saying registry checks are not enough.
A third group wants to change the law by carving out exceptions.
“For example,” said Cannon, “the FedEx guy goes on and off the campus quickly and is not in unsupervised contact with children. It is incidental contact.”
Cannon said Argenziano favors carving out exceptions. Other types of incidental contact, include workers behind a secure fence and puppet shows.
“Florida’s 67 school districts are liability conscious. There are many conservative interpretations,” added Cannon.
Ruth Melton, a spokesperson of the Florida School Boards Association, said the man who committed the crime against Jessica Lunsford had at one point worked on a construction project at her school.
“But, it was not while she was there. His awareness of her was that they lived in the same area,” she added. “The legislature was alarmed at the notion that someone who had a clear record of pedophilia could access school grounds.”
Melton said initially the bill focused on tracking devices and enhanced penalties.
“It was on the last day of consideration of this bill before final passage and the amendment was dropped in,” she said. The amendment addressed contractors, constructional personnel and school photographers.
Melton said the law raised several issues. The first was if it applied to all vendors who were there while students were on the grounds.
The second, according to Melton, meant everybody had to undergo Level 2 screening and, to some people, it isn’t worth going through the process.
Melton said there is the question of “moral turpitude” in the bill. Currently, each school district makes its own decision about whether a person is of good moral character.
“Her [Argenziano] intentions were excellent, but she didn’t have a good handle of what some implications could be,” said Melton. “We had hoped to make some changes during the special session, but we could not add it to the call. We have made legislators aware of our recommendations. We will continue to negotiate with them and make changes through next year.”
Melton said the Florida School Boards Association is trying to remove the requirement that contractors must have both state and FBI checks. Instead, the association recommends a check against the Florida Department of Law Enforcement’s sexual predator database and the U.S. Department of Justice’s National Sex Offender, both of which are free to use.
The association would like to see the law amended to clarify who is covered and to further define “moral turpitude.”
“We realized it was a problem in early July. There are 26 words in the 80 page law that deal with this,” said Mark Wylie, executive director of the Associated Builders and Contractors of Central Florida.
According to Wylie, state officials waited until Aug. 15 to issue an advisory to counties as to how to implement the law.
“This is very adverse to the construction industry,” said Wylie.
Wylie said he doesn’t disagree that children need to be protected from sexual predators. He said, “This has everything to do with collecting a massive amount of data and putting it in a database.”
Wylie believes it could affect availability of labor. He knows one man who had a $1.5-million contract with a school district, but turned it down because of the new law.
His organization plans to submit a bill in regular session seeking to do away with the Level 2 requirement. Instead, it would favor accessing the national FBI database and/or county sexual predator records.
“Changing it will be a landmark feat for whoever is able to change it,” said Wylie.
The Central District ABC has 475 member companies, while the state wide ABC has 2,000 member companies.
“It is a well-intended law with a lot of unintended consequences associated with it,” said Bruce Kershner, executive vice president, Underground Utility Contractors of Florida.
The statewide association has seven affiliated chapters with approximately 600 members.
In the state’s 67 school districts, “They are all handling and interpreting the law differently. This creates a problem, crossing lines and going county to county,” Kershner added. “I think there is a difference in ideals. Sen. Argenziano wanted to fix the bill. The House was looking to extend the effective date.”
He added, “This affects far more than the construction industry. There are a lot of people affected who have an interest in the issue.”
Kershner said he is optimistic that the regular session will address the need for change in Jessica’s Law.
“We have all worked with leadership on both sides, the House and the Senate. They are all aware of problems with the construction industry. They will reach out and make sure we are included,” he said.
Kershner said he and other affected construction-related groups didn’t realize that a late-filed amendment would have “far reaching effects on the industry.”
For more information, visit www.abccentralflorida.com. CEG
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