To update procedures pertaining to the following topic(s): Dating violence and video voyeurism; Sex on duty; Public nudity; Drug testing rules and accepted testing practices; bribery and unlawful compensation or reward for official behavior felony ...

 

DEPARTMENT OF LAW ENFORCEMENT
Criminal Justice Standards and Training Commission

RULE NO: RULE TITLE
11B-27.0011: Moral Character
11B-27.002: Certification, Employment or Appointment, Reactivation, and Terminating Employment or Appointment of Officers
11B-27.00212: Maintenance of Officer Certification
11B-27.00213: Temporary Employment Authorization
11B-27.0022: Background Investigations
11B-27.004: Probable Cause Determination
11B-27.005: Revocation or Disciplinary Actions; Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances
11B-27.013: Canine Team Certification
11B-27.014: Implementation of the Federal Law Enforcement Officers Safety Act of 2004
PURPOSE AND EFFECT: To update procedures pertaining to the following topic(s): Dating violence and video voyeurism; Sex on duty; Public nudity; Drug testing rules and accepted testing practices; bribery and unlawful compensation or reward for official behavior felony offenses; Information for obtaining CJSTC forms; Video voyeurism misdemeanor offenses; Door-to-door neighborhood background checks; Employment Background Investigative Report form CJSTC-77; Evidentiary rules and accepted testing practices for drug testing; Unlawful taking of controlled substances; Authority for Release of Information form CJSTC-58; CMS Firearms Performance Evaluation form CJSTC-4 CMS; Procedures for compliance with the Commission’s Firearms Qualification Standard; Procedures for processing violations more than eight years old for probable cause determination hearings; Delegation of specific authority to training center director designees.
SUMMARY: Subparagraph 11B-27.0011(4)(b)1., F.A.C.: Added the new statutes for “dating violence” (Section 784.046(15), F.S.) and for “video voyeurism” (Section 810.145, F.S.) to the list of misdemeanor or criminal offenses. Subparagraph 11B-27.0011(4)(c)5., F.A.C.: Added specific sexual acts that define “sex on duty,” or at any time the officer is acting under the color of authority as a Commission-certified criminal justice officer, and is not done for a bona fide medical purpose or in the lawful performance of the officer’s duty. subparagraph 11B-27.0011(4)(c)11., F.A.C.: Added the offense of “public nudity” to the list of acts or conduct of an officer for failure to maintain good moral character and defines “public nudity.” paragraph 11B-27.0011(4)(d), F.A.C.: Added the current evidentiary rules and accepted testing practices for drug testing listed in Section 112.0455, 440.102, or 944.474, F.S. Subsection 11B-27.0011(8), F.A.C.: Deleted rule text that discloses where individuals may obtain CJSTC forms. Rule 11B-27.002, F.A.C., and subsection 11B-27.0022(2) old (a), F.A.C.: Amended, in rule and on the Employment Background Investigative Report Form CJSTC-77 form, the requirement for door-to-door neighborhood checks from mandatory to recommended. Subsection 11B-27.00212(14), F.A.C.: Revised to require officers, who have been separated from employment or appointment for failure to complete the Commission’s Firearms Qualification Standard, to complete the required training within six months of the date the officer separated from employment or appointment, or comply with the certification or reactivation of certification requirement(s) in subsection 11B-27.002(1), F.A.C., prior to re-employment. Paragraph 11B-27.00213(2)(b), F.A.C.: Deleted the requirement on the CMS Firearms Performance Evaluation form CJSTC-4 CMS to shoot with a rifle or carbine in the “4 and 5 zone” of the B-29 reduced police silhouette target. Subsection 11B-27.0022(2) new (a), F.A.C.: Revised the Authority for Release of Information form CJSTC-58 to include new language for obtaining additional information needed to determine the good moral character of an applicant. Subsection 11B-27.0022(3), F.A.C.: Deleted the requirement for individuals to electronically submit the Employment Affidavit of Compliance form CJSTC-60 via the Commission’s Automated Training Management System. paragraph 11B-27.004(12)(a), F.A.C.: Revised to allow cases to be “no caused” when a violation has been committed more than eight years prior to Commission action at a Probable Cause Determination Hearing. Subparagraphs 11B-27.005(5)(a)16.-17., F.A.C.: Added “Bribery or unlawful compensation or reward for official behavior,” in Sections 838.015 and 838.016, F.S., to the enumerated felony offenses, absent aggravating or mitigating circumstances, with a recommended penalty of revocation. Paragraph 11B-27.005(5)(b), F.A.C.: Added “video voyeurism,” (Section 810.145, F.S.) to the enumerated misdemeanor offenses, absent aggravating or mitigating circumstances, with a recommended penalty of “Prospective suspension, and probation with counseling to revocation.” Rules 11B-27.013 and 11B-27.014, F.A.C.: Revised to allow a training center director designee to implement policies set by the Commission or the director, approve documents or make routine requests consistent with the Commission or director’s guidance, and represent the director at meetings.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 943.03(4), 943.12(1), 943.133(3), 943.1395 FS.
LAW IMPLEMENTED: 943.12, 943.12(3), 943.12(17), 943.13, 943.13(11), 943.13(7), 943.131, 943.132, 943.133, 943.135, 943.139, 943.1395(3), 943.1395, 943.1395(7), 943.1395(8), 943.17(1)(a), 943.1701, 943.1715, 943.1716, 943.253 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: Tuesday, April 6, 2010, 10:00 a.m.
PLACE: Florida Department of Law Enforcement (FDLE), Criminal Justice Professionalism Program, 2331 Phillips Road, Tallahassee, FL 32308
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Donna Hunt at [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Donna Hunt at [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

11B-27.0011 Moral Character.

(1) through (3) No change.

(4) For the purposes of the Criminal Justice Standards and Training Commission’s implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

(a) No change.

(b) Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

1. Sections 316.193, 327.35, 414.39, 741.31, 784.011, 784.03, 784.047, 784.048, 784.05, 784.046(15), 790.01, 790.10, 790.15, 790.27, 794.027, 796.07, 800.02, 800.03, 806.101, 806.13, 810.08, 810.14, 810.145, 812.014, 812.015, 812.14, 817.235, 817.49, 817.563, 817.565, 817.567, 817.61, 817.64, 827.04, 828.12, 831.30, 831.31(1)(b), 832.05, 837.012, 837.05, 837.055, 837.06, 839.13, 839.20, 843.02, 843.03, 843.06, 843.085, 847.011, 856.021, 870.01, 893.13, 893.147, 914.22, 934.03, 944.35, 944.37, and 944.39, F.S.

2. through 3. No change.

(c) The perpetration by an officer of acts or conduct that constitute the following offenses:

1. through 4 No change.

5. Engaging in oral, anal, or vaginal penetration by, or union with, the sexual organ of another person or engaging in anal or vaginal penetration by any other object sex while on duty, or at any time the officer is acting under the color of authority as a Commission-certified criminal justice officer, and not done for a bona fide medical purpose or in the lawful performance of the officer’s duty.

6. through 10. No change.

11. Any willful and offensive exposure or exhibition of his or her sexual organs in public or on the private premises of another or so near thereto as to likely be seen except in any place provided or set apart for that purpose.

12.11. Willful failure of the agency administrator to comply with Chapter 943, F.S., as it pertains to the Criminal Justice Standards and Training Commission or Commission rules.

13.12. Intentional abuse of a Temporary Employment Authorization, pursuant to Section 943.131(1), F.S.

(d) A certified officer’s unlawful injection, ingestion, inhalation, or other introduction of any controlled substance, as defined in Section 893.03, F.S., into his or her body as evidenced by a drug test in accordance with Section 112.0455, 440.102, or 944.474, F.S. Testing positive for controlled substances by a urine or blood test that results in a confirmed nanogram level pursuant to Rule 11B-27.00225, F.A.C., or is consistent with and indicative of the ingestion of a controlled substance pursuant to Chapter 893, F.S., and not having a specific nanogram level listed in Rule 11B-27.00225, F.A.C., shall be an affirmative defense to this provision to establish that any such ingestion was lawful. Any test of this kind relied upon by the Commission for disciplinary action, shall comply with the requirements for reliability and integrity of the testing process pursuant to Rule 11B-27.00225, F.A.C.

(5) through (7) No change.

(8) Forms referenced in this rule chapter may be obtained on the following web site: http://www.fdle.state.fl.us or by contacting the Florida Department of Law Enforcement, Criminal Justice Professionalism Program, Post Office Box 1489, Tallahassee, Florida 32302-1489, Attention: Bureau of Standards Forms Liaison.

Rulemaking Authority 943.03(4), 943.12(1) FS. Law Implemented 943.13(7), 943.1395(7) FS. History–New 1-7-85, Formerly 11B-27.011, Amended 7-13-87, 10-25-88, 12-13-92, 9-5-93, 1-19-94, 8-7-94, 11-5-95, 1-2-97, 7-7-99, 8-22-00, 11-5-02, 4-11-04, 11-30-04, 3-27-06, 3-21-07, 6-9-08, 4-16-09,_________.

 

11B-27.002 Certification, Employment or Appointment, Reactivation, and Terminating Employment or Appointment of Officers.

(1) through (2) No change.

(3) Employment requirements pursuant to Sections 943.13, F.S., shall be documented on an Agency New Hire Report, form CJSTC-207, revised November 8, 2007, hereby incorporated by reference. Form CJSTC-207 can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/Content/CJST/Publications/Professionalism-Program-Forms.aspx, or by contacting Commission staff at [phone].

(a) The files of newly hired officers are subject to an on-site inspection by Commission staff to ensure compliance with the requirements of Chapter 943, F.S., and Rule Chapter 11B-27, F.A.C. All documents collected in conjunction with the background investigation shall be available for review. The following documents shall be reviewed for completeness:

1. No change.

2. An Employment Background Investigative Report, form CJSTC-77, revised August 6, 2009 November 8, 2007, hereby incorporated by reference. Form CJSTC-77 can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/Content/CJST/Publications/Professionalism-Program-Forms.aspx, or by contacting Commission staff at [phone].

Rulemaking Specific Authority 943.03(4), 943.12(1) FS. Law Implemented 943.12(3), 943.13, 943.133, 943.139, 943.1395 FS. History–New 10-6-82, Amended 4-26-84, 1-7-85, Formerly 11B-27.02, Amended 9-3-87, 3-29-89, 5-14-92, 12-13-92, 9-5-93, 1-19-94, 1-2-97, 7-7-99, 8-22-00, 7-29-01, 11-5-02, 11-30-04, 3-27-06, 3-21-07, 6-9-08,_______.

 

11B-27.00212 Maintenance of Officer Certification.

(1) through (13) No change.

(14) Law Enforcement Officer Firearms Qualification Standard. Beginning July 1, 2006, a law enforcement officer shall be required to qualify on the Commission’s approved course of fire with the proficiency skills documented on the Law Enforcement Officer Firearms Qualification Standard, form CJSTC-86A, revised January 29, 2009, hereby incorporated by reference, and maintained in the officer’s employment file. Form CJSTC-86A can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/Content/CJST/Publications/Professionalism-Program-Forms.aspx, or by contacting Commission staff at [phone].

(a) through (b) No change.

(c) In the event a certified law enforcement officer fails to meet this standard by June 30 of each reporting year, the officer’s certificate shall become inactive until the employing agency provides documentation to Commission staff establishing that the firearms qualification standard has been satisfied. Active officers who were separated from employment or appointment for not satisfying the firearms qualification standard, and do not meet the standard within six months of separation from employment or appointment, shall comply with the certification or reactivation of certification requirement(s) of subsection 11B-27.002(1), F.A.C., prior to reemployment.

(d) through (e) No change.

(15) No change.

Rulemaking Authority 943.03(4), 943.12(1) FS. Law Implemented 943.12, 943.13(11), 943.135, 943.1395(3), 943.1701, 943.1715, 943.1716, 943.253 FS. History–New 11-5-02, Amended 12-3-03, 11-30-04, 3-27-06, 3-21-07, 6-9-08, 4-16-09,_______.

 

Editorial Note: See 11B-27.0023, F.A.C.

11B-27.00213 Temporary Employment Authorization.

A Certificate of Compliance shall not be issued to officers employed on a Temporary Employment Authorization (TEA) prior to meeting the requirements of Sections 943.13(1)-(10), F.S.

(1) No change.

(2) An officer employed on a TEA, shall be excused from the firearms training requirement upon placement of a statement in the officer’s file at the employing agency. The statement shall be signed by the agency administrator confirming that the TEA-appointed officer shall not be permitted to carry a firearm until the following classroom training requirements have been fulfilled:

(a) No change.

(b) Firearms Range Training. The trainee’s proficiency demonstration shall be documented on a CMS Firearms Performance Evaluation, form CJSTC-4 CMS, revised August 6, 2009 October 30, 2008, hereby incorporated by reference, and maintained in the trainee’s file at the employing agency. Form CJSTC-4-CMS can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/Content/CJST/Publications/Professionalism-Program-Forms.aspx, or by contacting Commission staff at [phone]. The instructor shall qualify the trainee with a handgun (revolver or semi-automatic pistol) and long gun (shotgun or semiautomatic rifle/carbine) using the Commission’s Basic Recruit Training Firearms Course of Fire, pursuant to form CJSTC-4 CMS, and the form shall be maintained in the trainee’s file at the employing agency. Trainees shall fire a long gun as prescribed in the Commission-approved Basic Recruit Training Program.

(3) through (5) No change.

Rulemaking Authority 943.03(4), 943.12(1) FS. Law Implemented 943.12(3), 943.13, 943.131, 943.133, 943.139, 943.1395, 943.17(1)(a) FS. History–New 11-5-02, Amended 11-30-04, 3-27-06, 6-9-08, 9-28-09,_________.

 

11B-27.0022 Background Investigations.

(1) No change.

(2) The employing agency shall, at a minimum, use the following background investigation procedures:

(a) Conduct neighborhood checks by attempting, where practical, to have a contact interview with at least three neighbors of the applicant within the previous three years. The content of the interview shall be the same regardless of the means of the neighborhood check. The interview shall be attempted in the following order of preference: in person, by telephone, or by mail.

(a)(b) Obtain previous employment data from prior employers. Criminal justice agencies conducting background investigations have the option of using the Authority for Release of Information, form CJSTC-58, revised August 6, 2009 November 8, 2007, pursuant to Sections 943.134(2) and (4), F.S., hereby incorporated by reference. Form CJSTC-58 can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/Content/CJST/Publications/Professionalism-Program-Forms.aspx, or by contacting Commission staff at [phone].

(b)(c) Research military records. A copy of the most recently issued DD 214, or other official separation document(s) from the United States Military denoting the discharge status or a copy of the officer’s current military identification, shall be maintained in the officer’s file at the employing agency. The agency shall document contact with the applicant’s commanding officer or designee if the applicant is currently serving on active duty or military reserve to ensure the applicant is compliant with military regulations. Wording on the documentation shall indicate the discharge was any discharge other than dishonorable. A military discharge that is other than an honorable discharge, shall be investigated by the agency. The agency shall submit a Request Pertaining to Military Record, form OMB No. 3095-0029.

(c)(d) Verify the applicant’s response regarding prior history of unlawful conduct through a Florida Crime Information Center and National Crime Information Center records and warrants check.

(d)(e) Verify the applicant’s response regarding unlawful drug use pursuant to subsection 11B-27.0011(2), F.A.C.

(3) The employing agency shall submit or electronically transmit to Commission staff through the Commission’s ATMS, a Registration of Employment Affidavit of Compliance form CJSTC-60. The agency shall also submit or electronically transmit to Commission staff through the Commission’s ATMS, a completed Employment Background Investigative Report form CJSTC-77, for each officer employed or appointed.  The original form CJSTC-77 that has been signed and dated by the investigator and the agency administrator or designee shall be retained in the applicant’s file.

Rulemaking Specific Authority 943.03(4) 943.12(1), 943.133(3) FS.  Law Implemented 943.133, 943.139 FS. History–New 10-6-82, Amended 1-7-85, Formerly 11B-27.022, Amended 7-13-87, 10-17-90, 5-13-92, 5-14-92, 12-13-92, 9-5-93, 8-7-94, 1-2-97, 7-7-99, 8-22-00, 11-5-02, 11-30-04, 3-27-06, 3-21-07, 6-9-08,________.

 

11B-27.004 Probable Cause Determination.

At the conclusion of the preliminary investigation and when the reports and documents are received as directed by Sections 943.139 and 943.1395, F.S., a determination of probable cause shall be made before the Commission initiates proceedings to take disciplinary action against the certification of an officer.

(1) through (11) No change.

(12)(a) In cases in which the facts presented to Commission staff are inconclusive, lack reliability, are insufficient to permit a reasonable determination of what occurred, or fail to demonstrate that the alleged misconduct meets the statutory criteria for Commission action, Commission staff shall is authorized to “no cause” the case.  Commission staff shall is authorized to reopen a case that has been “no caused” if new evidence or witnesses become available to Commission staff. However, Commission staff shall “no cause” a violation of paragraph 11B-27.0011(4)(b) or (c), F.A.C., if the officer is alleged to have committed the violation more than eight years prior to the case being presented at a Probable Cause Determination Hearing.

(13) through (14) No change.

Rulemaking Specific 943.03(4), 943.12(1), 943.1395 FS. Law Implemented 943.1395 FS. History–New 12-13-92, Amended 1-19-94, 11-5-95, 1-2-97, 7-7-99, 8-22-00, 11-5-02, 4-11-04, 11-30-04, 6-9-08,_________.

 

11B-27.005 Revocation or Disciplinary Actions; Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances.

(1) through (4) No change.

(5) When the Commission finds that a certified officer has committed an act that violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

(a) For the perpetration by the officer of an act that would constitute any felony offense, pursuant to paragraph 11B-27.0011(4)(a), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from suspension of certification to revocation. Specific violations and penalties that shall be imposed, absent mitigating circumstances, include the following:

1. through 15. No change.

16.	Bribery (838.015, F.S.)	Revocation Revocation
17.	Unlawful compensation or reward for official behavior (838.016, F.S.)

(b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 11B-27.0011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from probation of certification to suspension of certification.  Specific violations and penalties that shall be imposed, absent aggravating or mitigating circumstances, include the following:

1. through 7. No change.

8.

Prostitution or lewdness; voyeurism, video voyeurism (796.07, 810.14, 810.145, F.S.)

Prospective suspension, and probation with counseling to revocation

 

9. through 15. No change.

(c) through (d) No change.

(6) through (10) No change.

Rulemaking Specific Authority 943.03(4), 943.12(1) FS. Law Implemented 943.12(3), 943.1395(8) FS. History–New 10-6-82, Amended 1-7-85, Formerly 11B-27.05, Amended 3-29-89, 12-13-92, 2-17-93, 1-19-94, 8-7-94, 11-5-95, 1-2-97, 7-7-99, 8-22-00, 7-29-01, 11-5-02, 4-11-04, 11-30-04, 3-27-06, 3-21-07, 6-9-08,_______.

 

11B-27.013 Canine Team Certification.

(1) through (7) No change.

(8) Canine Team Evaluators. Prior to being approved by the Commission as a canine team evaluator, the evaluator shall provide documentation verifying that the evaluator applicant has complied with the following requirements:

(a) through (b) No change.

(c) A letter of recommendation for the evaluator applicant from a training center director, or agency administrator, or designee.

Rulemaking Specific Authority 943.03(4), 943.12(1) FS. Law Implemented 943.12(17) FS. History–New 3-29-89, Amended 12-13-92, 1-2-97, 7-7-99, 8-22-00, 7-29-01, 11-5-02, 11-30-04, 3-27-06, 3-21-07, 6-9-08,________.

 

11B-27.014 Implementation of the Federal Law Enforcement Officers Safety Act of 2004.

(1) through (3) No change.

(4) Issuance and Maintenance of form CJSTC-600.

(a) A request for form CJSTC-600 shall be made in writing to the Florida Department of Law Enforcement, Criminal Justice Professionalism Program, Post Office Box 1489, Tallahassee, Florida 32302, Attention: Officer Records Section.

1. No change.

2. A training school is allowed to receive up to 200 each of the CJSTC-600 form one time a month with each written request, and the request shall be made on the training school’s letterhead signed by the training center director or designee.

3. No change.

(b) through (c) No change.

(5) through (6) No change.

Rulemaking Specific Authority 943.03(4), 943.12(1) FS. Law Implemented 943.12, 943.132 FS. History–New 3-3-08, Amended _________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Donna Hunt at [phone]

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governor and Cabinet

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 24, 2010

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: January 15, 2010