94-002006 Brenda K. Poucher vs. Department Of Law Enforcement Status: Closed Recommended Order on Wednesday, September 28, 1994.

Summary: Petitioner's failure to demonstratre successfully every defensive tactic high liability skill is basis for denial of certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA K. POUCHER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2006

)

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Don W. Davis, held a formal hearing in the above-

styled case on August 31, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joan Stewart

Assistant General Counsel

Police Benevolent Association

Post Office Box 11239

Tallahassee, Florida 32302

For Respondent: Monica Atkins White

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

STATEMENT OF THE ISSUE

Whether Respondent should grant Petitioner's application for certification

as a correctional probation officer.

PRELIMINARY STATEMENT

By letter dated August 6, 1993, Respondent's representative informed

Petitioner that Petitioner's application for certification as a correctional

probation officer was denied. Petitioner requested a formal administrative

hearing with regard to Respondent's denial of the application and the matter was

forwarded to the Division of Administrative Hearings for conduct of further

proceedings.

At the formal hearing, Petitioner presented the testimony of one witness,

herself. Respondent presented no testimony. The parties stipulated to the

admission of three joint exhibits.

A final transcript of the proceedings was filed with the Division of

Administrative Hearings on September 8, 1994. Rulings on proposed findings of

fact submitted by the parties are set forth in the Appendix to this Recommended

Order.

FINDINGS OF FACT

1. Respondent's Criminal Justice Standards And Training Commission (CJSTC)

is the governmental agency responsible for the promulgation and implementation

of uniform training standards and requirements for the position of corrections

probation officer (CPO). Neither Respondent nor CJSTC is an employer of

Petitioner.

2. Minimum curriculum requirements of any training academy are created and

enforced by CJSTC. One of the minimum curriculum requirements that CPO training

academies must teach is the Defensive Tactics course. Further, anyone seeking

certification as a CPO must successfully complete this course. To successfully

complete the course, the certification applicant must demonstrate proficiency in

all the high liability skill areas.

3. CJSTC has created minimum performance requirements within each high

liability skill area. As authorized by rule, the CJSTC-6 checklist form serves

as an index and lists the proficiency requirements within each required

defensive tactic high liability skill area. Every student must successfully

demonstrate every technique as directed in the curriculum in order to complete

the Defensive Tactics course.

4. Petitioner enrolled in a CJSTC-certified basic training academy for

CPOs. By stipulation of the parties, Petitioner admits that she has not

successfully demonstrated every high liability defensive tactic skill as

required by Rules 11B-35.0024, and 11B-35.0022, Florida Administrative Code.

Petitioner maintains she is unable to demonstrate the required proficiency

because she has a partial hip and leg bone replacement prosthesis, complicated

by obesity.

5. Petitioner did complete all other basic training academy requirements

and is currently employed as a temporary CPO with the Florida Department of

Corrections.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction over this

matter. Section 120.57(1), Florida Statutes.

7. Petitioner has the burden of proving by a preponderance of the evidence

her entitlement to the certification sought in this proceeding. Florida

Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st

DCA 1981).

8. Section 943.12(17), Florida Statutes, provides CJSTC with exclusive

authority to:

Promulgate rules for the certification and

discipline of officers who engage in those

specialized areas found to present a high

risk of harm to the officer or the public at

large and which would in turn increase the

potential liability of an employing agency.

9. Section 943.13(9), Florida Statutes, provides that all applicants for

certification as a correctional probation officer complete a CJSTC approved

basic recruit training program.

10. Requirements of Rules 11B-35.0024, and 11B-35.0022, Florida

Administrative Code, are unequivocal; successful demonstration of every required

defensive tactics high liability skill is necessary for certification. By her

own stipulation and admission, Petitioner fails to meet this requirement.

11. The gravamen of Petitioner's response to Respondent's denial of

certification is that Respondent, as a result of following its rules, has failed

to make accommodation for Petitioner's handicap in the certification process.

12. Petitioner's argument is more appropriate for consideration within the

confines of a challenge to an agency's administrative rules, a proceeding

conducted pursuant to Section 120.56, Florida Statutes, where the Hearing

Officer exercises final authority. In the instant Section 120.57 proceeding,

consideration of the merit of Petitioner's application and subsequent

recommendation to the referring agency is limited to a determination of whether

the rules were properly applied; not whether the rules are infirm.

13. Based on the foregoing findings of fact, it is concluded that

Petitioner has not established her entitlement to certification as a

correctional probation officer.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

recommended that a Final Order be entered denying Petitioner's application for

certification as a correctional probation officer.

DONE and ENTERED in Tallahassee, Florida, this 28th day of September, 1994.

___________________________________

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of September, 1994.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the

following rulings are made on the proposed findings of fact submitted on behalf

of the parties.

Petitioner's Proposed Findings

1. Adopted by reference as to first sentence. Remainder

rejected, subordinate.

2.-8. Rejected, relevance.

9.-10. Rejected, hearsay.

11. Rejected, lack of record citation.

12.-13. Adopted by reference.

Respondent's Proposed Findings

1. Adopted by reference.

2.-5. Adopted in substance.

6. Rejected, legal conclusion.

7. Adopted by reference.

8. Rejected, cumulative.

9. Relevant to determining the appropriateness of the rule

in a challenge to the rule. Rejected in this

proceeding on the basis of relevancy.

10.-12. Rejected, argument.

13. Rejected, legal conclusion.

COPIES FURNISHED:

Joan Stewart

Assistant General Counsel

Police Benevolent Association

Post Office Box 11239

Tallahassee, Florida 32302

Monica Atkins White

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

A. Leon Lowry, Director

Criminal Justice Standards

Training Commission

Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore

Commissioner

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage

General Counsel

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.