Sub-paragraph 11B-27.0011(4)(b)1., F.A.C.: Amends current rule language as a result of the 2015 Legislature, which created Chapter 784.049, F.S., Sexual Cyberharassment. This charge applies to persons who publish a sexually explicit image of ...

 

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-27.003 Duty to Report, Investigations, Procedures

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

PURPOSE AND EFFECT: Sub-paragraph 11B-27.0011(4)(b)1., F.A.C.: Amends current rule language as a result of the 2015 Legislature, which created Chapter 784.049, F.S., Sexual Cyberharassment. This charge applies to persons who publish a sexually explicit image of another to Internet websites without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person.

Sub-paragraph 11B-27.0011(4)(c)15., F.A.C.: Adds a new sub-paragraph to include “discriminatory conduct” as a moral character violation.

Sub-paragraphs 11B-27.0011(4)(c)15.a.-b., F.A.C.: Adds new sub-paragraphs to define “discriminatory conduct” violation and includes penalty guidelines for Florida officers who exhibit discriminatory conduct and who participate in activity which furthers the interests of a “hate group”, as defined in Section 874.03(6), F.S.

Sub-paragraph 11B-27.0011(4)(c)15.c., F.A.C.: Adds a new sub-paragraph to define an “expression of public concern” as it relates to discriminatory course of conduct.

Paragraph 11B-27.002(1)(f), F.A.C.: Incorporates the revised Affidavit of Applicant, form CJSTC-68, to only request the last four digits of the applicant’s social security number and removes the specific Florida Statute (F.S.) reference for sealed and expunged records, which will require applicants to disclose sealed and expunged records “outside” of Florida that would impact their ability to become certified.

Sub-paragraph 11B-27.002(3)(a)11., F.A.C.: Incorporates the revised Exemption-From-Training, form CJSTC-76, to add a field for the applicant’s email address; and revises the Exemption-From-Training. Proficiency Demonstration, form CJSTC-76A, to update the instructions and allow training center directors to appoint a “designee” as an authorized signer on the form.

Sub-paragraphs 11B-27.00212(15)(c)1.-7., F.A.C.: Clarifies that elder abuse training in any of the CJSTC law enforcement basic recruit training programs, or Advanced and Specialized Training Programs, starting on or after a specified date, may count toward the requirement for completion of elder abuse training. New courses on the topic that are approved by the Commission will immediately qualify without rule change. Also, renumbers the subparagraphs and removes the specific names of courses.

Paragraph 11B-27.003(2)(a), F.A.C.: Incorporates the revised Internal Investigation Report, form CJSTC-78, to change the rule reference and update the name of the form in the instructions.

Sub-paragraph 11B-27.005(5)(a)8., F.A.C.: Adds the violation of “falsifying records” (Section 839.13(2), F.S.) to the enumerated penalty guideline for felonies.

Sub-paragraph 11B-27.005(5)(a)9., F.A.C.: Adds the violation of “sexual cyberharassment” to the enumerated penalty guidelines for felonies.

Sub-paragraph 11B-27.005(5)(a)19., F.A.C.: Adds the violation of “felony threats” to the enumerated penalty guideline for felonies.

Sub-paragraph 11B-27.005(5)(b)2., F.A.C.: Adds the violation of “malicious battery” to the enumerated penalty guidelines.

Sub-paragraph 11B-27.005(5)(b)4., F.A.C.: Adds the violation of “falsifying records” (Section 839.13(1), F.S.) to the enumerated penalty guideline for misdemeanors involving false reports or statements.

Sub-paragraph 11B-27.005(5)(b)16., F.A.C.: Adds the new violation of “threats” to the enumerated penalty guidelines and includes recommended penalty range of “prospective suspension to revocation”.

Sub-paragraph 11B-27.005(5)(b)17., F.A.C.: Adds the violation of “sexual cyberharassment” to the enumerated penalty guidelines and includes recommended penalty range of “prospective suspension, and probation with counseling to revocation”.

Sub-paragraphs 11B-27.005(5)(c)16.-17., F.A.C.: Adds the violation of “discriminatory conduct” to the penalty guidelines and includes recommended penalty ranges of “written reprimand to revocation” and “revocation”.

SUMMARY: Updated rule references; violations of “sexual cyberharassment”, “threats”, “malicious battery”, “falsifying records”, “felony threats”, “discriminatory conduct”; and definition of “expression of public concern” as it relates to discriminatory course of conduct; removal of specific names of courses; parameters for specific training in the CJSTC training programs; clarification for elder abuse training courses; revised Affidavit of Applicant, form CJSTC-68; Exemption-From-Training, form CJSTC-76; and the Exemption-From-Training Proficiency Demonstration, form CJSTC-76A.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the adverse impact or potential regulatory costs of the proposed rule did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes.

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.

RULEMAKING AUTHORITY: 943.03(4), 943.12(1), FS.

LAW IMPLEMENTED: 943.12, 943.12(3), 943.13, 943.13(7), (11), 943.133, 943.135, 943.139, 943.1395(3), (7) 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: Wednesday, April 11, 2018, 10:00 a.m.

PLACE: Florida Department of Law Enforcement, Criminal Justice Professionalism, 2331 Phillips Road, Tallahassee, Florida 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: Joyce Gainous-Harris at [phone], or [e-mail], or write to Florida Department of Law Enforcement, Criminal Justice Professionalism, 2331 Phillips Road, Tallahassee, Florida 32308. 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: Joyce Gainous-Harris at [phone], or [e-mail], or write to Florida Department of Law Enforcement, Criminal Justice Professionalism, 2331 Phillips Road, Tallahassee, Florida 32308.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

11B-27.0011 Moral Character.

(1) through (3)

(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, 365.16(1)(c),(d), 414.39, 741.31, 784.011, 784.03, 784.047, 784.048, 784.05, 784.049(3)(a), 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, 812.014, 812.015, 812.14, 817.235, 817.49, 817.563, 817.565, 817.61, 817.64, 827.04, 828.12, 831.30, 831.31(1)(b), 832.05, 836.12(2), 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, 901.36 914.22, 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 14. No change.

15. Discriminatory Conduct:

a. The perpetration by the officer of either a course of conduct or a single egregious act that evidences discriminatory conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or sexual orientation, which does not involve an expression of public concern, and which causes a clear and substantial belief in the mind of a reasonable person that the officer cannot perform the duties of office in a fair and impartial manner, with respect for the rights of others and laws of the state and nation; or

b. Knowingly, willfully, and actively participating in any activity committed with the intent to benefit, promote, or further the interests of a “hate group”, as defined in Section 874.03(6), Florida Statutes.

c. For the purposes of this section, an expression of public concern shall mean an expression by an individual as a citizen that relates to any matter of political, social, or other concern of the community. Expressions of public concern are determined by the content, form, and context of the given act or course of conduct, viewed by the totality of the record. 

(d) No change.

(5) through (7) No change.

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, 6-3-10, 5-21-12, 3-13-13, 5-29-14, 7-29-15,9-4-16,              .

 

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

(1) Certification or Reactivation of Certification.  Prior to submitting an application for certification or reactivation of certification for a law enforcement, correctional, or correctional probation officer, the employing agency shall collect and verify documents establishing that an applicant has complied with the requirements of Section 943.13, F.S.  Verified documents shall be maintained in the officer’s training file at the employing agency.  The following documents are required for verification of an applicant’s compliance with this rule section: 

(a) through (e) No change.

(f) An Affidavit of Applicant, form CJSTC-68, revised August 10, 2017, effective December 16, 2010 (effective 3/2013), hereby incorporated by reference https://www.flrules.org/Gateway/reference.asp?No=Ref___ https://www.flrules.org/Gateway/reference.asp?No=Ref-02236, executed by the applicant attesting that the applicant complies with the employment or appointment qualifications pursuant to Sections 943.13(1)-(10), F.S.  Form CJSTC-68 can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/cms/CJSTC/Publications/Forms.aspx, or by contacting Commission staff at [phone]. 

(g) through (h) No change.

(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/cms/CJSTC/Publications/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. through 10. No change.

11. An Exemption-From-Training, form CJSTC-76, revised August 10, 2017 August 4, 2016, effective 7/2017, hereby incorporated by reference http://www.flrules.org/Gateway/reference.asp?No=Ref-08443, and an Exemption-From-Training Proficiency Demonstration, form CJSTC-76A, revised August 10, 2017 November 6, 2014, effective               7/2015, hereby incorporated by reference https://www.flrules.org/Gateway/reference.asp?No=Ref___, for previous Florida and out-of-state, federal, or military officers, if the officer used this training option.  Forms CJSTC-76 and CJSTC-76A can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/cms/CJSTC/Publications/Forms.aspx, or by contacting Commission staff at [phone]. 

12. through 15. No change.

(b) No change.

(4)(a) through (b) No change.

(5) No change.

Rulemaking 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, 6-3-10, 5-21-12, 3-13-13, 5-29-14, 7-29-15, 9-4-16, 9-14-17,               . 

 

11B-27.00212 Maintenance of Officer Certification.

(1) through (14) No change.

(15) Elder Abuse Training.  As a part of basic recruit training or the officer’s continuing education or training, a law enforcement officer shall be required to complete training on identifying and investigating elder abuse and neglect.

(a) through (b) No change.

(c) Law enforcement officers who have successfully completed one of the following programs will have satisfied this training requirement:

1. Any CJSTC approved law enforcement basic recruit training program entered into on or after 4/1/08. Florida CMS Law Enforcement BRTP number 1177 (Effective 4/1/08). 

2. Correctional Officer Cross-Over Training to Florida CMS Law Enforcement BRTP number 1178 (Retired 6/30/12).  Correctional Officer Cross-Over Training to Florida CMS Law Enforcement BRTP number 1191 (Retired 6/30/14).

3. Correctional Probation Officer Cross-Over Training to Florida CMS Law Enforcement BRTP number 1179 (Retired 6/30/14). 

4. CMS Law Enforcement Auxiliary Officer BRTP number 1180 (Effective 4/1/08). 

2.5. Any CJSTC Advanced Training Program course on elder abuse or investigation of crimes against the elderly entered into on or after 4/1/06. Crimes Against the Elderly advanced training course number 100 (Effective 4/1/06). 

3.6. Elder Abuse Training for Law Enforcement course by the Department of Elder Affairs (Effective 10/30/08).

4.7. Any CJSTC Specialized Training Program course on elder abuse or investigation of crimes against the elderly entered into on or after 8/1/12.  Elder Abuse Investigations specialized training program course number 1185. There are no required minimum training hours for mandatory retraining, however, training schools are permitted to teach the course as a specialized training program course requiring a minimum of four contact hours.

(d) through (e) 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, 9-28-09, 6-3-10, 5-21-12, 3-13-13, 9-4-16,               .  Editorial Note:  See 11B-27.0023, F.A.C.

 

11B-27.003 Duty to Report, Investigations, Procedures.

(1) No change.

(2) Upon concluding the investigation:

(a) If the allegations are sustained, the employing agency shall complete an Internal Investigation Report, form CJSTC-78, revised August 10, 2017 August 4, 2016, effective               7/2017, hereby incorporated by reference https://www.flrules.org/Gateway/reference.asp?No=Ref___ http://www.flrules.org/Gateway/reference.asp?No=Ref-08476, regardless of whether any civil service appeal, arbitration, employment hearing, administrative, civil, or criminal action is pending or contemplated.  Form CJSTC-78 can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/cms/CJSTC/Publications/Forms.aspx, or by contacting Commission staff at [phone].

(b) through (c) No change.

Specific Authority 943.03(4), 943.12(1) FS.  Law Implemented 943.1395(5) FS.  History–New 10-6-82, Amended 1-7-85, Formerly 11B-27.03, Amended 12-13-92, 9-5-93, 7-7-99, 8-22-00, 11-5-02, 11-30-04, 6-9-08, 9-14-17,              .

 

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 7. No change.

 

	Violation	Recommended Penalty Range
8.	False Statements (Sections 837.02, 837.021, 837.05(2), 838.022, 839.13(2), F.S.)	Prospective Suspension to revocation
9.	Felony stalking, Sexual Cyberharassment (Section 784.048, 784.049(3)(b), F.S.)	Revocation

 

10. through 18. No change.

 

	Violation	Recommended Penalty Range
19.	Felony threats (Section 836.12(3), F.S.)	Revocation

 

(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. No change.

 

	Violation	Recommended Penalty Range
2.	Battery; Malicious Battery (Section 784.03, 944.35(3)(a)(1), F.S.)	Suspension

 

3. No change.

 

	Violation	Recommended Penalty Range
4.	False reports and statements (Sections 817.49, 837.012, 837.05(1), 837.055, 837.06, 839.13(1), 901.36, 944.35(4)(b), F.S.).	Prospective suspension to revocation

 

5. through 15. No change.

 

	Violation	Recommended Penalty Range
16.	Threats (836.12(2), F.S.	Prospective suspension to revocation
17.	Sexual Cyberharassment, (Section 784.049(3)(a), F.S.)	Prospective suspension, and probation with counseling to revocation

 

(c) For the perpetration by the officer of an act or conduct, as described in paragraph 11B-27.0011(4)(c), F.A.C., if such act or conduct does not constitute a crime described in paragraphs (5)(a)-(b) of this rule section, the action of the Commission shall be to impose the following penalties, absent aggravating or mitigating circumstances:

1. through 15. No change.

 

	Violation	Recommended Penalty Range
16.	Discriminatory conduct specified in sub-paragraph 11B-27.0011(4)(c)15.a., F.A.C.	Written reprimand to revocation
17.	Discriminatory conduct specified in sub-paragraph 11B-27.0011(4)(c)15.b., F.A.C.	Revocation

 

(d) No change.

(6) through (10) No change.

Rulemaking 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, 6-3-10, 5-21-12, 5-29-14, 9-4-16,               . 

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Bureau Chief Glen Hopkins

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 7, 2018

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 30, 2017