Fla. Admin. Code R. 11B-27.005

Current through Reg. 50, No. 222; November 13, 2024

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

(1) For the purpose of implementing the provisions of Rule 11B-27.004, F.A.C., "significant agency action" is defined as follows:

(a) For an offense that would be sanctioned by suspension of certification under these guidelines herein: Suspension from duty without pay for at least one day, or any change in assignment or duties that results in reduction in compensation.

(b) For an offense that would be sanctioned by probation of certification under these guidelines herein: Any documented or written formal action, any change in assignment or duties that results in reduction in compensation.

(2) Additionally, for an offense that requires retraining, in addition to suspension or probation, "significant agency action" shall include agency certification of in-service retraining by a qualified instructor. For an offense that requires counseling, in addition to suspension or probation, there shall be agency certification of counseling by a qualified counselor.

(3) Pursuant to the provisions of Section 943.1395(8), F.S., disciplinary proceedings shall be conducted as prescribed in chapter 120, F.S., Administrative Procedures Act, and rule Chapter 28, F.A.C., Uniform Rules of Procedure, when there is a determination of probable cause that a certificate holder, hereinafter referred to as a "certified officer," has failed to maintain compliance with:

(a) Section 943.13(4) or (7), F.S., or

(b) An order of the Commission previously issued during a disciplinary hearing, or

(c) The Temporary Employment Authorization (TEA) requirements pursuant to Section 943.131, F.S.

(4)

(a) The Commission sets forth in paragraphs (5)(a)-(d) of this rule section, a range of disciplinary guidelines from which disciplinary penalties shall be imposed upon certified officers who have been found by the Commission to have violated section 943.13(7), F.S. The purpose of the disciplinary guidelines is to give notice to certified officers of the range of penalties or prescribed penalties that shall be imposed for particular violations of Section 943.13(7), F.S., absent aggravating or mitigating circumstances, as provided in subsection (6) of this rule section. The disciplinary guidelines are based upon a "single count violation" of each provision listed. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), that may be included in the final penalty at the Commission's discretion.

(b) In determining a penalty that may be imposed by the Commission, when a penalty guideline recommendation includes "suspension," the Commission is authorized to consider the number of days of employment suspension imposed upon the officer by the employing agency for retroactive or parallel inclusion in the length of a certification suspension imposed by the Commission. When a penalty guideline recommendation includes "prospective suspension," no such inclusion is authorized.

(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:

Violation		Recommended Penalty Range
1.	Felony assault (Sections 784.021, 784.07, F.S.)	Prospective suspension to revocation
2.	Felony battery (Sections 784.041, 784.045, 784.07, F.S.)	Prospective suspension to revocation
3.	Possession, sale of controlled substance (Section 893.13, F.S.)	Revocation
4.	Tampering with evidence (Section 918.13, F.S.)	Revocation
5.	Introduction of contraband into a jail or prison involving a firearm, concealed weapon, controlled substance, currency, or a tool or implement useful in an attempt to escape from custody (Sections 843.11, 944.47, 951.22, F.S.)	Revocation
6.	False Statements (Sections 837.02, 837.021, 837.05(2), 838.022, 839.13(2), F.S.)	Prospective suspension to revocation
7.	Felony stalking, Sexual Cyberharassment (Section 784.048, 784.049(3)(b), F.S.)	Revocation
8.	Sexual battery, unlawful sexual activity with a minor (Sections 794.011, 794.05, F.S.)	Revocation
9.	Lewd or lascivious offense, child under 16 (Section 800.04, F.S.)	Revocation
10.	Child abuse (Sections 827.03, 827.071, F.S.)	Prospective suspension to revocation
11.	Aggravated child abuse with violence (Section 827.03, F.S.)	Revocation
12.	Resisting an officer with violence (Section 843.01, F.S.)	Prospective suspension to revocation
13.	Felony controlled substance violation (Sections 893.13, 893.135, 893.147, 893.149, F.S.)	Revocation
14.	Bribery (Section 838.015, F.S.)	Revocation
15.	Unlawful compensation or reward for official behavior (Section 838.016, F.S.)	Revocation
16.	Video Voyeurism	Prospective suspension and probation with counseling to revocation
17.	Felony threats (Section 836.12(3), F.S.	Revocation
18.	Sexual Misconduct (Section 944.35(3)2., F.S.)	Revocation
19.	Possession of Certain Drugs without Prescriptions with the intent to sell, dispense, or deliver (Section 499.03, F.S.)	Prospective suspension to revocation
20.	Obscenity (Sections 847.011(1)(c), 847.011(5), 847.0135, 847.0145, F.S.)	Prospective suspension to 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:

Violation		Recommended Penalty Range
1.	Assault (Section 784.011, F.S.)	Suspension
2.	Battery; Malicious Battery (Section 784.03, 944.35(3)(a)(1), F.S.)	Suspension
3.	Petit theft (Section 812.014, F.S.)	Suspension to revocation
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.	Improper exhibition of a weapon (Section 790.10, F.S.)	Probation with training
6.	Discharging a firearm in public (Section 790.15, F.S.)	Suspension
7.	Passing a worthless check (Section 832.05, F.S.)	Probation
8.	Prostitution or lewdness; voyeurism; video voyeurism (Sections 796.07, 810.14, 810.145, F.S.)	Prospective suspension, and probation with counseling to revocation
9.	Indecent exposure (Section 800.03, F.S.)	Suspension, and probation with counseling to revocation
10.	Driving or boating under the influence (Sections 316.193 and 327.35, F.S.)	Probation with substance abuse counseling
	Driving or boating under the influence-Second Offense	Prospective suspension with substance abuse counseling to revocation
	Driving or boating under the influence with property damage or injury	Prospective suspension with substance abuse counseling to revocation
	Driving or boating under the influence -blood-alcohol level or breath-alcohol level of 0.15 or higher	Prospective suspension with substance abuse counseling to revocation
	Driving or boating under the influence while accompanied in the vehicle by a person under the age of 18 years	Prospective suspension with substance abuse counseling to revocation
11.	Possess or delivery without consideration, and not more than 20 grams of Cannabis (Section 893.13, F.S.)	Revocation
12.	Neglect or refusal to aid (Section 843.06, F.S.)	Suspension to revocation
13.	Second violation of domestic violence or other protective injunction (Sections 741.31, 784.047, F.S.)	Prospective suspension to revocation
14.	Stalking (Section 784.048, F.S.)	Prospective suspension to revocation
15.	Battery involving domestic violence with slight or moderate victim physical injury (Sections 741.28, 784.03, F.S.)	Prospective suspension to revocation
16.	Threats (Section 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
18.	Second refusal to submit to a physical test of breath, blood, or urine (Section 316.1939, F.S.)	Prospective suspension with substance abuse counseling to revocation
19.	Installation of tracking devices or applications (Section 934.425, F.S.)	Suspension to revocation
20.	Possession of certain drugs without prescriptions (Section 499.03, F.S.)	Suspension to revocation
21.	Obscenity (Section 847.011(5), F.S.)	Prospective suspension to revocation
22.	Introduction of Contraband (Sections 944.47 and 951.22, F.S.)	Suspension 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:

Violation		Recommended Penalty Range
1.	Excessive use of force under the color of authority	Suspension to revocation
2.	Sexual harassment involving physical contact or misuse of position	Probation with training to suspension with training
3.	Misuse of official position	Suspension to revocation
4.	Engaging in sex while on duty, or at any time the officer is acting under the color of authority as a Commission-certified officer	Suspension to revocation
5.	Unprofessional relationship with an inmate, detainee, probationer or Revocation parolee, or community controlee that subsequently impairs the officer's ability to perform necessary duties and responsibilities fairly and objectively or that jeopardizes the security of the correctional institution	Revocation
6.	Other unprofessional relationship with an inmate, detainee, probationer or parolee, or community controlee	Probation of certification with training to suspension with training
7.	False statements during the employment application process	Suspension to revocation
8.	Conduct that subverts or attempts to subvert the State Officer Certification Examination process pursuant to subsection 11B-30.009(1), F.A.C.	Revocation
9.	Subverting Commission-approved training or employing agency promotional examination process	Suspension to revocation
10.	Any overt, conspicuous, or public act of a sexual or simulated sexual nature which is likely to be observed by others	Suspension to revocation
11.	Willful failure of the agency administrator to comply with Chapter 943, F.S., as it pertains to the Commission or Commission rules	Suspension to revocation
12.	Conduct that subverts or attempts to subvert the Basic Abilities Test process pursuant to subsection 11B-35.0011(1), F.A.C.	Revocation
13.	Misuse of Electronic Database	Probation to suspension
14.	Intentional Abuse of a Temporary Employment Authorization	Suspension to revocation
15.	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.	Suspension to revocation
16.	Discriminatory conduct specified in sub-subparagraph 11B-27.0011(4)(c) 15.a., F.A.C.	Written reprimand to revocation
17.	Discriminatory conduct specified in sub-subparagraph 11B-27.0011(4)(c) 15.b., F.A.C.	Revocation

(d) Notwithstanding subsection (4) of this rule section, for the unlawful use by a certified officer of any controlled substances specified in Section 893.13, F.S., or Rule 11B-27.00225, F.A.C., pursuant to paragraph 11B-27.0011(4)(d), F.A.C., the action of the Commission, absent clear and convincing evidence of complete rehabilitation and substantial mitigating circumstances, shall be to impose a penalty ranging from prospective suspension to revocation.

(6) The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission, if pursuant to Section 120.57(2), F.S., or to an Administrative Law Judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one or more of the following:

(a) Aggravating circumstances:

1. Whether the certified officer used official authority to facilitate the misconduct.

2. Whether the misconduct was committed while the certified officer was performing other duties.

3. The number of violations found by the Commission.

4. The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.

5. The severity of the misconduct.

6. The danger to the public.

7. The actual damage, physical or otherwise, caused by the misconduct.

8. The lack of deterrent effect of the penalty imposed by the employing agency.

9. The pecuniary benefit or self-gain to the officer realized by the misconduct.

10. Whether the misconduct was motivated by unlawful discrimination.

11. Any behavior constituting "domestic violence" defined by Section 741.28(2), F.S.

12. Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.

13. The certified officer has not filed any answer to the Administrative Complaint or otherwise responded to the allegations of misconduct alleged by the Commission.

(b) Mitigating circumstances:

1. The officer's employment status in a position requiring Commission certification at the time of the final hearing before the Commission.

2. The recommendations of character or employment references.

3. The lack of severity of the misconduct.

4. The length of time the officer has been certified by the Commission.

5. Any effort of rehabilitation by the certified officer.

6. The effect of disciplinary or remedial action taken by the employing agency or recommendations of the employing agency administrator.

7. The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.

8. Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.

(7) The Commission shall impose one or more of the following penalties, listed in increasing order of severity:

(a) The issuance of a reprimand.

(b) Successful completion by the certified officer of a Basic Recruit Training Program, Advanced Training Program, or Career Development Training Program, or such retraining deemed appropriate by the Commission.

(c) Placement on a probationary status for a period not to exceed two years and subject to the terms and conditions imposed by the Commission. The Commission may impose one or more of the following terms and conditions of probation:

1. Periodic reports from the officer, supervisor, or counselor, or indirect or direct supervision by a Commission-approved supervisor.

2. Furnishing urine samples and consents to the release of analysis results of random or scheduled urine drug tests at the officer's expense.

3. Participation in psychological, occupational, or substance abuse counseling.

4. Successful completion of training or retraining specified in paragraphs (5)(b), (c) of this rule section.

5. Refraining from violations of Sections 943.13(4), (7), F.S.

6. The payment of restitution for damages or loss created by the certified officer's misconduct.

7. The effective date of any period of probation imposed on a respondent by the Commission shall begin fifteen days from the filing date of the Final Order, unless such probation is to follow a period of prospective suspension. Commission staff shall monitor the probation status of each officer to ensure compliance with the conditions of probation. Commission staff shall report to the Commission satisfactory completion of probation, as well as any violations of the conditions of probation. If the officer violates any of the conditions of probation, Commission staff shall report the violations to the Commission for consideration of further disciplinary action, pursuant to subsection (3) of this rule section and Section 943.1395(7)(c), F.S.

(d) Suspension of certification and the privilege of employment as an officer for a period not to exceed two years.

(e) Revocation of certification.

(8)

(a) The provisions of subsections (1)-(7) of this rule section are not intended and shall not be construed to limit the ability of the Commission to pursue or recommend collateral, civil, or criminal actions, when appropriate.

(b) The provisions of subsections (1)-(7) of this rule section are not intended and shall not be construed to limit the ability of the Commission to informally dispose of disciplinary actions by stipulation, agreed settlement, or consent order, pursuant to Section 120.57(4), F.S.

(9) Action by the Commission disciplining an officer's certification shall concurrently discipline all other certifications of any nature issued to that officer by the Criminal Justice Standards and Training Commission pursuant to Sections 943.1395(1) and 943.12(3), F.S., and Rules 11B-20.001 and 11B-27.002, F.A.C.

(10) Temporary Employment Authorization (TEA). Individuals employed on a TEA, pursuant to Section 943.131, F.S., who are retained by the employing agency, are subject to the following discipline by the Commission when found to have committed an act or acts establishing a "lack of good moral character," defined in subsection 11B-27.0011(4), F.A.C.:

(a) If the Commission issues a probationary period to an individual employed on a TEA, such individual shall be eligible for certification pending successful completion of the terms and conditions of the probationary period.

(b) If the Commission issues a suspension period to an individual employed on a TEA, such individual shall not be eligible for certification until the completion of the suspension period.

(c) If an individual commits a revocable offense the Commission shall deny the individual's request for certification.

(11) Individuals employed on a TEA who are found to have committed an act or acts establishing a "lack of good moral character," defined in subsection 11B-27.0011(4), F.A.C., and are terminated from employment prior to certification are subject to the following discipline by the Commission. Upon a finding of probable cause by a panel of the Commission, the Commission shall: declare the individual ineligible to apply for certification in any discipline for a period of two years pursuant to Section 943.13(7), F.S., regarding good moral character for employment or appointment as an officer.

(12) If an individual employed on a TEA, pursuant to Section 943.131, F.S., is found to have committed an act or acts establishing a "lack of good moral character," defined in subsection 11B-27.0011(4), F.A.C.: becomes certified at any time during the Commission's preliminary investigation or disciplinary process, the individual will no longer be subject to the actions of subsection (10) or (11), but will instead be subject to discipline as defined in Rule 11B-27.005, F.A.C.

Fla. Admin. Code Ann. R. 11B-27.005

Rulemaking Authority 943.03(4), 943.12(1) FS. Law Implemented 943.12(3), 943.1395(8) FS.

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, Amended by Florida Register Volume 42, Number 164, August 23, 2016 effective 9/4/2016, Amended by Florida Register Volume 44, Number 148, July 31, 2018 effective 8/15/2018, Amended by Florida Register Volume 46, Number 078, April 21, 2020 effective 5/5/2020, Amended by Florida Register Volume 47, Number 086, May 4, 2021 effective 5/20/2021, Amended by Florida Register Volume 48, Number 115, June 14, 2022 effective 6/26/2022, Amended by Florida Register Volume 50, Number 114, June 11, 2024 effective 6/25/2024.