STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZOE GAIL McLENDON, )

)

Petitioner, )

)

vs. ) Case No. 00-2350

) FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL )

JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on September 22, 2000, in Inverness, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Zoe Gail McLendon, pro se

Post Office Box 842 Dunnellon, Florida 34430

For Respondent: Shehla A. Milliron, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489 STATEMENT OF THE ISSUE

Whether Petitioner's request for a waiver from a rule which would allow her to reactivate her law enforcement certification without further training or examination should be granted.

PRELIMINARY STATEMENT

This matter began on May 3, 2000, when Respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, issued an Order Denying Petition for Waiver from Rule 11B-27.0026(2)(a) and (b), Florida Administrative Code, filed by Petitioner, Zoe Gail McLendon. By her request, Petitioner had asked for a waiver from the requirements of the rule so that she could reactivate her law enforcement certification without having to complete a certification examination review course, high-liability training, and officer certification examination. The certification had become inactive by operation of law when Petitioner left her job more than four years earlier and had failed to become re-employed by a law enforcement agency within that period of time.

On May 23, 2000, Petitioner requested a formal hearing to contest the agency's action. The case was referred by Respondent to the Division of Administrative Hearings on June 5, 2000, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated June 29, 2000, a final hearing was scheduled on September 22, 2000, in Inverness, Florida. On September 15, 2000, the case was transferred from Administrative Law Judge Don W. Davis to the undersigned.

By Order dated July 31, 2000, Respondent's Motion for Summary Final Order was denied. Respondent's Motion for

Reconsideration and Clarification was also denied by Order dated August 31, 2000. At hearing, the motion was again renewed.

At the final hearing, Petitioner testified on her own behalf. Respondent presented the testimony of Bonnie White, human resource director for the Citrus County Sheriff's Office; Sergeant Vern Blevins, training coordinator for the Citrus County Sheriff's Office; and Danny Quick, training and research manager for the Florida Department of Law Enforcement. Also, it offered Respondent's Exhibits 1-9 and A, which were received in evidence.

The Transcript of the hearing was filed on October 10, 2000.

Proposed Findings of Fact and Conclusions of Law were filed by Petitioner and Respondent on October 5 and 25, 2000, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this proceeding, Petitioner, Zoe Gail McLendon, whose correctional officer and law enforcement certifications became inactive in October 1999, seeks a waiver from the requirements of Rule 11B-27.0026(2)(a) and (b), Florida Administrative Code.

   That rule requires that in order for her to activate her certifications, Petitioner must successfully complete refresher training courses and pass certification examinations in each discipline. If the waiver is approved, Petitioner intends to

   activate her law enforcement certification and seek employment with the Citrus County Sheriff's Office as an auxilliary deputy sheriff.

2. Without reaching the merits of her request, Respondent, Florida Department of Law Enforcement (FDLE), Criminal Justice Standards and Training Commission (Commission), rendered a preliminary decision on May 3, 2000, denying Petitioner's request on the ground that she was actually seeking a waiver of a statute, which is expressly forbidden by Section 120.542(1), Florida Statutes (1999).

3. Petitioner was first certified as a law enforcement officer on March 24, 1987, having been issued Law Enforcement Certification No. 66303. She is also certified as a correctional officer, having been issued Correctional Officer Certification No. 66304 on May 8, 1984.

4. From December 16, 1983, until October 1, 1995, Petitioner was employed by the Citrus County Sheriff's Office as a correctional officer at the Citrus County Detention Facility. When the position was privatized on October 1, 1995, she continued to work in the same position for Correctional Corporations of America until October 23, 1995, when she voluntarily resigned. She has not worked with a law enforcement agency since that time.

5. Under Section 943.1395(3), Florida Statutes (1999), if a certified officer is separated from employment and is not re-

   employed by a law enforcement agency within four years after the date of separation, the officer must meet the minimum qualifications for certification, including any retraining required by Commission rule. The purpose of such retraining is to bring the officer's skills up-to-date after having been inactive over the prior four-year period.

6. Rule 11B-27.0026(1)(a) and (b), Florida Administrative Code, implements the foregoing statute and provides that a person seeking to reactivate a law enforcement certification must take a 92-hour certification examination refresher course and a high- liability training course (including defensive tactics, firearms, and driving), and successfully complete the state certification examination. Therefore, Petitioner had to be re-employed by a law enforcement agency no later than October 23, 1999, or be subject to these additional training and examination requirements. Petitioner acknowledges that she was aware of this requirement.

7. In addition to the foregoing requirements, Petitioner was also required to complete forty hours of mandatory retraining as a correctional officer by June 30, 1997, and a similar number of hours of mandatory retraining as a law enforcement officer by June 30, 1999.

8. In May 1999, Petitioner spoke by telephone with Bonnie Miller (Miller), human resource director for the Citrus County Sheriff's Office, concerning possible employment as an

   auxilliary deputy. Petitioner explained that she needed to complete her mandatory retraining by June 30, 2000, and to be re-employed before October 23, 1999, in order to keep her law

   enforcement certification from expiring. Miller told Petitioner that any application she filed would be considered, but that she should speak with Sergeant Vern Blevins (Blevins), the training officer, who was more familiar with the mandatory retraining requirements.

9. Petitioner then telephoned Blevins to inquire whether her recent graduation from St. Leo College with a degree in Criminal Justice would satisfy the mandatory retraining requirement. Blevins told Petitioner that he did not know if the degree would satisfy the domestic violence, human diversity, and juvenile sexual offender portions of the training requirement. He also told her that the Sheriff's Office had no in-house training courses available before June 30, 1999, and he referred her to several nearby schools that offered such training, including the Withlacoochee Vocational Technical Center (Vo-Tech Center) and a community college.

10. On a later undisclosed date, Petitioner spoke with an instructor named Eva Brown at the Vo-Tech Center and says Brown advised her to make an inquiry about retraining with FDLE's office in Tallahassee. On October 11, 1999, or less than two weeks before her certificates became inactive, Petitioner telephoned Brenda Harp in the FDLE's records section and left a

    message (and two contact telephone numbers) indicating that she needed a question answered.

11. Another record sections employee, Ms. Murozzi, attempted to return the call the same day but was unable to reach Petitioner at either of the two telephone numbers given. Efforts to reach Petitioner the following day were also unsuccessful.

12. On October 22, 1999, or the day before her law enforcement certification became inactive, Petitioner again telephoned the Commission and spoke for about an hour with Murozzi concerning her situation. Petitioner was told essentially the same thing that she already knew - that her certification would expire the following day since she had not completed the mandatory retraining or become employed by a law enforcement agency. A suggestion was made by Murozzi that perhaps Petitioner might seek a waiver from the Commission's rule. This proceeding followed.

13. While it is true that a strict application of the rule will obviously create a substantial hardship on Petitioner, the application of the rule will not affect Petitioner in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule. Indeed, the evidence shows that "several thousand" individuals in the same situation as Petitioner have been required to undergo the very same training and examination requirements that Petitioner seeks to have waived. This indicates rather clearly that Petitioner's

    circumstances are not unusual, and that thousands of officers have found themselves in the same situation.

14. At the same time, Petitioner cannot satisfy the purpose of the underlying statute [Section 943.1395(3), Florida Statutes (1999)] by any other means. In other words, without the retraining and examination required by the rule, Petitioner's law enforcement skills cannot be brought up-to-date.

15. Although not germane to the waiver issue, at hearing Petitioner contended that the Commission had the responsibility to timely notify her before October 1999 of all requirements that she had to satisfy in order to keep her certificates active. State law provides, however, that the local employing agency (rather than the Commission or FDLE) has this duty. If an officer is unemployed, like Petitioner was, then the responsibility rests upon the individual to ascertain that information. This is because there are "a couple of hundred thousand or more inactive officers" at any given time, and the Commission neither has the statutory duty nor the computer capability to keep track of certification requirements for that number of inactive officers and to relay that information to each inactive officer.

16. At hearing, Petitioner also took the position that because the Florida Statutes provide for a waiver of rules under certain circumstances, she is automatically entitled to one. This contention has been found to be without merit.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1999).

18. As the party seeking to establish entitlement to certification through a waiver of a rule, Petitioner bears the ultimate burden of persuasion as to that issue.

19. Petitioner seeks a waiver from the requirements of Rule 11B-27.0026(1)(a) and (b), Florida Administrative Code. That rule imposes additional training and examination requirements on previously certified officers whose certifications have become inactive. The purpose of the

    underlying statute, Section 943.1395(3), Florida Statutes (1999), is to ensure that the job skills of law enforcement officers are brought up-to-date after they have been inactive for at least four years.

20. A waiver is defined in Section 120.52(19), Florida Statutes (1999), as "a decision by an agency not to apply all or part of a rule to a person who is subject to the rule." The general premise behind the statutory scheme is that it gives agencies flexibility to deal with unusual circumstances. Norma Howell v. Bd. of Clinical Laboratory Personnel, Case No. 97-1881 (Bd. Of Clin. Lab. Pers., Feb. 11, 1998). Thus, when unusual circumstances are present, the agency is no longer obliged to

    rigidly follow its rules where the consequences of doing so "can lead to unreasonable, unfair, and unintended results in particular instances." Section 120.542(1), Florida Statutes (1999).

21. Section 120.542(2), Florida Statutes (1999), authorizes the Board to grant a waiver:

    when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of the rule would create a substantial hardship or would violate principles of fairness. For purposes of this section, "substantial hardship" means a demonstrated economic . . . hardship to the person requesting a variance or waiver. For purposes of this section, "principles of fairness" are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.

22. The established evidence supports a conclusion that Petitioner has failed to satisfy the requirements for a waiver. More specifically, she has not demonstrated that the rule affects her "in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule." She has also failed to show that the purpose of the underlying statute can be satisfied without additional retraining and examination. Given these considerations, there are no unusual circumstances present, and a denial of her request will not "lead to unreasonable, unfair, and unintended results." Section

    120.542(1), Florida Statutes (1999). This being so, her request for a waiver from the rule should be denied.

23. In light of the above conclusion, the Commission's renewal of its Motion for Summary Final Order is rendered moot.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order denying Petitioner's request for a waiver from the requirements of Rule 11B-27.0026(2)(a) and (b), Florida Administrative Code.

DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2000.

COPIES FURNISHED:

A. Leon Lowrey, II, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael R. Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Zoe Gail McLendon Post Office Box 842

Dunnellon, Florida 34430

Shehla A. Milliron, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with agency that will issue the final order in this case.

Docket for Case No: 00-002350

Orders for Case No: 00-002350