MISSISSIPPI LEGISLATURE

2005 Regular Session

To: Public Health and Human Services

By: Representative Lott, Aldridge, Baker (8th), Barnett, Beckett, Bounds, Carlton, Davis, Formby, Gunn, Hamilton (6th), Masterson, Mayhall, Mims, Moore, Nicholson, Staples, Stevens, Turner, Wells-Smith

House Bill 1165

AN ACT TO CREATE NEW SECTION 43-15-301, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTION 43-15-303, MISSISSIPPI CODE OF 1972, TO PROHIBIT EMPLOYERS OFFERING A CHILD CARE SERVICE FROM UTILIZING SEX OFFENDERS AS EMPLOYEES OR VOLUNTEERS, AND TO PROVIDE PENALTIES THEREFOR; TO CREATE NEW SECTION 43-15-305, MISSISSIPPI CODE OF 1972, TO PROHIBIT SEX OFFENDERS FROM OWNING OR OPERATING A CHILD CARE SERVICE, AND TO PROVIDE PENALTIES FOR VIOLATIONS; TO CREATE NEW SECTION 43-15-307, MISSISSIPPI CODE OF 1972, TO PROHIBIT A SEX OFFENDER FROM WORKING FOR OR VOLUNTEERING AT A CHILD CARE SERVICE, AND TO PROVIDE PENALTIES FOR VIOLATIONS; TO AMEND SECTIONS 43-20-8, 45-33-33, 45-33-35 and 45-33-41, MISSISSIPPI CODE OF 1972, TO CONFORM; TO REPEAL SECTION 45-33-32, MISSISSIPPI CODE OF 1972, WHICH REQUIRES SEX OFFENDERS TO NOTIFY VOLUNTEER ORGANIZATIONS TO WHICH THEY MAY VOLUNTEER OF SUCH OFFENDER STATUS; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  The following shall be codified as Section 43-15-301, Mississippi Code of 1972:

     43-15-301.  As used in this act, the following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise:

          (a)  (i)  "Child care service" means any school, business or volunteer service that is:

                   1.  Licensed by the state to perform child care; or

                   2.  Involves the care, instruction or guidance of minor children where a fee is charged for the care, instruction, guidance or participation of a child in the program or activity offered by the school, business or service; or

.             (ii)  Any public school.

          (b)  "Child care service employer" means every person, firm, association, partnership, or corporation offering or conducting a child care service.

          (c)  "Applicant" means any person who is being considered for employment or as a volunteer by a child care service employer.

          (d)  "Convicted" means an adjudication of guilt, an adjudication that the applicant is physically or mentally incompetent, an adjudication that the applicant is not guilty by reason of insanity, or a plea of nolo contendere.

          (e)  "Sex offense" shall have the meaning ascribed in Section 45-33-23.

     SECTION 2.  The following shall be codified as Section 43-15-303, Mississippi Code of 1972:

     43-15-303.  (1)  A child care service employer offering or conducting a child care service:

          (a)  Shall not employ or permit to volunteer an applicant who is listed on the sex offender registry as a sex offender under Section 45-33-25; and

          (b)  Shall not knowingly employ or permit to volunteer an applicant who has been convicted of a sex offense.

     (2)  (a)  A child care service employer who violates this section is guilty of a misdemeanor, and upon conviction shall be fined not more than Twenty-five Thousand Dollars ($25,000.00), imprisoned for a period not to exceed six (6) months, or both.

          (b)  An employer who obtains an official report from the Mississippi Justice Information Center that the applicant is not registered as a sex offender shall not be guilty of a violation of this section, absent the employer's actual knowledge that the applicant is a sex offender.

     SECTION 3.  The following shall be codified as Section 43-15-305, Mississippi Code of 1972:

     43-15-305.  A person required to register as a sex offender under Section 45-33-25 may not own or operate a child care service.  Any person who is required to register as a sex offender under Section 45-33-25 who knowingly owns or operates a child care service is guilty of a felony, and upon conviction shall be imprisoned in the custody of the Department of Corrections for a period not to exceed five (5) years.

     SECTION 4.  The following shall be codified as Section 43-15-307, Mississippi Code of 1972:

     43-15-307.  (1)  A person required to register as a sex offender under Section 45-33-25 may not be employed by or volunteer at a child care service.  Any person who is required to register as a sex offender under Section 45-33-25 who knowingly undertakes employment or volunteer service with a child care service is guilty of a felony, and upon conviction shall be imprisoned in the custody of the Department of Corrections for a period not to exceed five (5) years.

     (2)  Any person who knowingly fails to inform a child care service employer of a prior conviction of a sex offense when applying or volunteering for any child care service, or who applies for employment or as a volunteer for any child care service, knowing that the person is required to register as a sex offender under Section 45-33-25, shall be guilty of a felony, and upon conviction shall be imprisoned in the custody of the Department of Corrections for a period not to exceed five (5) years.

     SECTION 5.  Section 43-20-8, Mississippi Code of 1972, is amended as follows:

     43-20-8.  (1)  The licensing agency shall have powers and duties as set forth below, in addition to other duties prescribed under this chapter:

          (a)  Promulgate rules and regulations concerning the licensing and regulation of child care facilities as defined in Section 43-20-5;

          (b)  Have the authority to issue, deny, suspend, revoke, restrict or otherwise take disciplinary action against licensees as provided for in this chapter;

          (c)  Set and collect fees and penalties as provided for in this chapter; and

          (d)  Have such other powers as may be required to carry out the provisions of this chapter.

     (2)  Child care facilities shall assure that parents have welcome access to the child care facility at all times.

     (3)  Each child care facility shall develop and maintain a current list of contact persons for each child provided care by that facility.  An agreement may be made between the child care facility and the child's parent, guardian or contact person at the time of registration to inform the parent, guardian or contact person if the child does not arrive at the facility within a reasonable time.

     (4)  Child care facilities shall require that, for any current or prospective caregiver, current criminal records background and sex offender registry checks and current child abuse registry checks are obtained.  In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted.  If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check.

     (5)  The licensing agency shall require to be performed a criminal records background check and a child abuse registry check for all operators of a child care facility and any person living in a residence used for child care.  The Department of Human Services shall have the authority to disclose to the State Department of Health any potential applicant whose name is listed on the Child Abuse Central Registry or has a pending administrative review.  That information shall remain confidential by all parties.  In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted.  If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check.

     (6)  The licensing agency shall have the authority to exclude a particular crime or crimes or a substantiated finding of child abuse and/or neglect as disqualifying individuals or entities for prospective or current employment or licensure.

     (7)  The licensing agency and its agents, officers, employees, attorneys and representatives shall not be held civilly liable for any findings, recommendations or actions taken under this section.

     (8)  All fees incurred in compliance with this section shall be borne by the child care facility.  The licensing agency is authorized to charge a fee that includes the amount required by the Federal Bureau of Investigation for the national criminal history record check in compliance with the Child Protection Act of 1993, as amended, and any necessary costs incurred by the licensing agency for the handling and administration of the criminal history background checks.

     SECTION 6.  Section 45-33-33, Mississippi Code of 1972, is amended as follows:

     45-33-33.  (1)  The failure of an offender to provide any registration or other information, including, but not limited to, initial registration, reregistration or change of address information, * * * as required by this chapter, is a violation of the law.  Additionally, forgery of information or submission of information under false pretenses is also a violation of the law.

     (2)  Unless otherwise specified, a violation of this chapter shall be considered a felony and shall be punishable by a fine not more than Five Thousand Dollars ($5,000.00) or imprisonment in the State Penitentiary for not more than five (5) years, or both fine and imprisonment.

     (3)  Whenever it appears that an offender has failed to comply with the duty to register or reregister, the department shall promptly notify the sheriff of the county of the last known address of the offender.  Upon notification, the sheriff shall attempt to locate the offender at his last known address.

          (a)  If the sheriff locates the offender, he shall enforce the provisions of this chapter.  The sheriff shall then notify the department with the current information regarding the offender.

          (b)  If the sheriff is unable to locate the offender, the sheriff shall promptly notify the department and initiate a criminal prosecution against the offender for the failure to register or reregister.  The sheriff shall make the appropriate transactions into the Federal Bureau of Investigation's wanted-person database.

     (4)  A first violation of this chapter may result in the arrest of the offender.  Upon any second or subsequent violation of this chapter, the offender shall be arrested for such violation.

     (5)  Any prosecution for a violation of this section shall be brought by a prosecutor in the county of such violation.

     SECTION 7.  Section 45-33-35, Mississippi Code of 1972, is amended as follows:

     45-33-35.  (1)  The Mississippi Department of Public Safety shall maintain a central registry of sex offender information as defined in Section 45-33-25 and shall adopt rules and regulations necessary to carry out this section.  The responsible agencies shall provide the information required in Section 45-33-25 on a form developed by the department to ensure accurate information is maintained.

     (2)  Upon conviction, adjudication or acquittal by reason of insanity of any sex offender, if the sex offender is not immediately confined or not sentenced to a term of imprisonment, the clerk of the court which convicted and sentenced the sex offender shall inform the person of the duty to register and shall perform the registration duties as described in Section 45-33-23 and forward the information to the department.

     (3)  Upon release from prison, placement on parole or supervised release, the Department of Corrections shall inform the person of the duty to register and shall perform the registration duties as described in Section 45-33-23 and forward the information to the Department of Public Safety.

     (4)  Upon release from confinement in a mental institution following an acquittal by reason of insanity, the director of the facility shall inform the offender of the duty to register and shall notify the Department of Public Safety of the offender's release.

     (5)  Upon release from a youthful offender facility, the director of the facility shall inform the person of the duty to register and shall perform the registration duties as described in Section 45-33-23 and forward the information to the Department of Public Safety.

     (6)  In addition to performing the registration duties, the responsible agency shall:

          (a)  Inform the person having a duty to register that:

              (i)  The person shall report in writing any change of address to the department ten (10) days before changing address.

              (ii)  Any change of address to another state shall be reported to the department in writing no less than ten (10) days before the change of address.  The offender shall comply with any registration requirement in the new state.

              (iii)  The person must register in any state where the person is employed, carries on a vocation, is stationed in the military or is a student.

              (iv)  All address verifications must be returned to the department within the required time period.

              (v)  Any change in status of a registrant's enrollment, employment or vocation at any institution of higher learning shall be reported to the department in writing within ten (10) days of the change.

 * * *

          (b)  Require the person to read and sign a form stating that the duty of the person to register under this chapter has been explained.

          (c)  Obtain or facilitate the obtaining of a biological sample from every registrant as required by this chapter if such biological sample has not already been provided to the Mississippi Crime Lab.

     SECTION 8.  Section 45-33-41, Mississippi Code of 1972, is amended as follows:

     45-33-41.  (1)  The Department of Corrections or any person having charge of a county or municipal jail or any juvenile detention facility shall provide written notification to an inmate or offender in the custody of the jail or other facility due to a conviction of or adjudication for a sex offense of the registration * * * requirements of Sections 45-33-25 and 45-33-31 * * * at the time of the inmate's or offender's confinement and release from confinement, and shall receive a signed acknowledgment of receipt on both occasions.

     (2)  At least ten (10) days prior to the inmate's release from confinement, the Department of Corrections shall notify the victim of the offense or a designee of the immediate family of the victim regarding the date when the offender's release shall occur, provided a current address of the victim or designated family member has been furnished in writing to the Director of Records for such purpose.

     SECTION 9.  Section 45-33-32, Mississippi Code of 1972, which requires sex offenders who volunteer with volunteer organizations to notify the organization of convictions, is repealed.

     SECTION 10.  This act shall take effect and be in force from and after July 1, 2005.