Definition of Municipal Ordinance
Municipal ordinances are the governing laws, rules, and regulations enacted by cities and other local government entities. Ordinances cover a wide range of subjects and, where the violation results in the issuance of a Notice to Appear or is punishable by jail, may require an appearance in criminal court.
For example, in the cities Jacksonville Beach and Neptune Beach, Florida, it is a violation of city ordinances to possess or consume alcoholic beverages in public. Upon observing a violation, local police will detain a defendant, issue a Notice to Appear, and the defendant will be required to appear in county criminal court to answer to the charge.
Expunging Ordinance Violations
Whether a municipal ordinance violation can be expunged or sealed depends on whether the record at issue constitutes a “criminal history record” within the meaning of Chapter 943, Florida Statutes.
In the case of expunctions, § 943.0585(2) provides that the Florida Department of Law Enforcement (FDLE) “shall issue a certificate of eligibility for expunction to a person who is the subject of a criminal history record” if that person satisfies the eligibility requirements specified in the statute (emphasis added).
Florida’s record-sealing statute (§ 943.059) uses an identical standard for determining eligibility to pursue the sealing of a record.
What is a Criminal History Record?
Section 943.045(6) defines the term “criminal history record” as “any nonjudicial record maintained by a criminal justice agency containing criminal history information” (emphasis added).
Under § 943.045(5), “Criminal history information” means:
[I]nformation collected by criminal justice agencies on persons, which information consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges and the disposition thereof (emphasis added).
Thus, by the plain language of the statute, there are two scenarios by which information may constitute a “criminal history record” and “criminal history information:”
- The information is collected by criminal justice agencies and the information contains identifiable descriptions or notation of arrests, detentions, indictments, and informations; or
- The information constitutes formal criminal charges and the disposition thereof.
Ordinance Violations as a Criminal History Record
Following the above definitions, some municipal ordinance violations will involve a defendant being issued a Notice to Appear to answer to the charges in criminal court. The issuance of a Notice to Appear necessarily involves a detention and the creation of identifying information and descriptions of the defendant by a criminal justice agency.
These factors, by themselves, establish the necessary elements of a “criminal history record” within the meaning of § 943.045.
Moreover, under Rule 3.140(2), Florida Rules of Criminal Procedure, a Notice to Appear is a formal charging document that may be utilized for the prosecution of misdemeanor offenses and ordinance violations. This factor arguably satisfies the second scenario in which a case qualifies as a “criminal history record.”
FDLE’s Position on Ordinance Violations
In at least one case involving Public Consumption of Alcohol in the City of Jacksonville Beach, the Florida Department of Law Enforcement has taken the position that such a case may not be sealed or expunged because the offense does not constitute a “criminal history record.” FDLE’s subsequent rejection of the application to expunge was based on the fact that the ordinance violation in question was not comparable to an existing State criminal statute.
FDLE’s position on this issue is problematic for two reasons. First, there is no part of the definition of “criminal history record” which limits sealing or expunction to “comparable” ordinance violations.
Second, the language in Section 943.0585 concerning “comparable” ordinance violations pertains to defendants being disqualified from sealing or expunging because of a prior conviction for such a violation. The “comparable” ordinance standard is not a criterion for FDLE to consider when determining whether a case can be considered a “criminal history record.”
The case referenced above is currently in litigation following our firm’s filing of a Petition for Writ of Mandamus in the Circuit Court of Duval County.