STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

JACK L. POITINGER, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 76-936RX

) DEPARTMENT OF CRIMINAL LAW ) ENFORCEMENT, DIVISION OF ) STANDARDS AND TRAINING, ) POLICE STANDARDS AND )

TRAINING COMMISSION, )

)

Respondent. )

)

FINAL ORDER

This cause came before the undersigned Hearing Officer under the authority of Section 120.56, F.S.

APPEARANCES

For Petitioner: Jack L. Poitinger, Jr, pro se

Post Office Box 6144 Tallahassee, Florida 32201

For Respondent: William S. Stevens, III, Esquire

Assistant Attorney General Department of Legal Affairs Civil Division

725 South Calhoun Street Tallahassee, Florida 32304

1. The Petitioner, Poitinger, has challenged a rule of the Department of Criminal Law Enforcement, Division of Standards and Training, Police Standards and Training Commission. This rule deals with the requirements for certification of police officers who have been out of Law Enforcement service for over three years. That rule is found in Chapter 11A-5.01, F.A.C., and states:

   
   

   "11-5.01 Requirements for Law Enforcement Officers out of service for Three Years.

   
   

   9A-5.01 Requirements for Law Enforcement Officers out of service for Three Years. Any individual who is employed with an employing agency as a police officer as those terms are defined in Section 23.061,

   Florida Statutes, and who has been certified or recognized as being in compliance with

   the Police Standards Act under the provisions

   of Sections 23.069(2), 23.069(3) or 23.075,

   Florida Statutes, or by other means under the laws of this state and the Rules of the Police Standards Board and who voluntarily or involuntarily terminates such employment and is not employed by an employing agency as a police officer for a period of three

   1. years following such termination must comply with (a) or (b) below, before becoming recertifiable with an employing agency as a police officer.

      1. If previously certified under the provisions of Section 23.075, Florida Statutes, must meet the provisions of Section 23.068, Florida Statutes, and successfully complete the training prescribed for recruit officers under the provisions of Section 23.067, Florida Statutes. Prescribed recruit training

         may be exempted and the refresher training course identified in (b) below may be substituted when applicant can qualify under Section 23.069(3), Florida Statutes.

      2. If previously certified under th provisions of Sections 23.060(2) or 23.069(3), Florida Statutes, and undergo the refresher training course as prescribed in Rule Section 11A-13.02, Rules of the Police Standards Board.

      3. Individuals complying with above section (b) for re-entry into the law enforcement service shall not be considered as completing Rule Section 11A-13.02 For Salary Incentive Payment under the Career Development Program."

         
         

2. The Petitioner has been a law enforcement officer and has been certified as being in compliance with the Police Standards Act, but has been out of service for over three years.

   
   

3. Between the years 1963 and 1970 the Petitioner was a full time police officer. On June 3, 1975, the Petitioner applied with the Tallahassee Police Department for a position as a Reserve Police Officer. However, the Respondent advised the Petitioner he was ineligible until he had completed recognized courses in various areas of law enforcement.

   
   

4. The Petitioner claims that Rule 11A-5.01, F.A.C., is an invalid exercise of rule making authority.

   
   

5. The rule in question deals with former police officers who have been out of service for over three years. As such, the Petitioner is affected by this rule and has standing to challenge its validity.

   
   

6. Section 120.56(1), F.S., states:

   
   

   "(1) Any person substantially affected by a rule may seek an administrative

   determination of the invalidity of the rule on the ground:

   1. That the rule is an invalid exercise of validity delegated legislative authority.

   2. The rule is an exercise of invalidly delegated legislative authority."

   
   

7. The Respondent's statutory authority to adopt additional rules stems from Section 943.12, F.S. which states in part:

   
   

   "In connection with the employment and training of police officers, the commission shall have specific power to:

   (a) Promulgate rules and regulations for the administration of this chapter pursuant to Chapter 120."

   
   

8. The Petitioner states that the rule in question is invalid for being contrary to the intent of the legislature.

   
   

9. When uniform police standards first were adopted by Florida in 1967 a savings clause was enacted to protect police officers from becoming ineligible to continue in their work. This was found in Section 23.075 and stated:

   
   

   "All police officers employed on the effective date of this act shall not be required to meet the provisions of Section

   23.063 and 23.067(1) as a condition of tenure or continued employment; nor shall their failure to fulfill such requirements make them ineligible for any promotional examination for which they are otherwise eligible."

   
   

10. The Petitioner states that since he was certified as a police officer by virtue of the savings clause that applied to him in 1967 (23.075, F.S.) the application of Rule 11A-5.01 wrongfully denies him of the certification he was given by statute. As such he argues the rule is contrary to the statute and therefore invalid.

    
    

11. Chapter 943.19, F.S., is virtually a re-enactment of Section 23.075 and the Petitioner argues that since he was qualified under the old law should be considered to be qualified under 943.19. It is true the wording of both sections is almost identical except Chapter 23 exempted all police officers as of June 1, 1967 and Chapter 943 uses August 1, 1974 as a cutoff date for the savings clause. Had the legislature intended to re-enact Chapter 23 in Chapter 943 they would have used the June 1, 1967 date. Instead they used August 1, 1974 as their new cutoff date.

    
    

12. By enacting Chapter 943 and adding a more recent date in the savings clause the legislature was attempting to upgrade police standards and require training for those police officers who had a break in service after June 1, 1967. Moreover, both Section 23.075 and Section 943.19 speak of police officers continuing in-service and being eligible for promotion. Neither sections are any authority for the conclusion that once a police officer is certified by virtue of either savings clause they continue to be qualified under the Police Standards Act. To argue otherwise would be tantamount to advocating the

    proposition that once a police officer is graced by either savings clause he is forever free from any additional requirements of training and certification regardless of how long he has been out of police service. Such a conclusion is not warranted by the statutes.

    
    

13. The challenged rule therefore is not in conflict with the statutory sections dealing with police standards.

    
    

14. The Petitioner submitted evidence which went to a claim that the rule is unreasonable and arbitrary. The Petitioner is a lawyer and a member of the Florida Bar. He teaches law enforcement at Tallahassee Community College and has been technically certified to teach all courses required for certification by the Police Standards Board. To deny him certification, he argues, is unreasonable and arbitrary.

    
    

15. Whatever are the merits of this position, they really go to the decision taken by the Respondent, not to the validity of this rule. The Petitioner maintains he is qualified by virtue of his education, experience and certification as an instructor in law enforcement to be certified as qualified to be a police officer.

    
    

16. That argument, and the evidence submitted relating to it would be relevant were this case one which considered the merits of the Respondent's position that the Petitioner required additional training in a variety of subjects to be certified as qualified to serve as a police officer. However, that is a decision made by the Respondent which was not based on Rule 11A-5.01.

    
    

17. As such it is a separate issue from what may affect a determination of the validity of the rule. Had the Petitioner challenged the Department's decision that he was personally not qualified, such evidence would have been more meaningful. But the rule's validity or invalidity does not hinge on the Petitioner's qualifications, only on the authority of the Department and the reasonableness of the rule.

    
    

18. Finally, the Petitioner takes the position that the rule has no basis in fact to support its adoption and is unreasonable and arbitrary. From the evidence presented it cannot be stated as a matter of law that this rule is so unreasonable as to be invalid. The rule appears to be a legitimate effort on the part of the Department to maintain and upgrade a high level of training among police officers.

It is therefore ORDERED this Petition challenging Rule 11A-5.01, F.A.C., is denied.

DONE AND ORDERED this 28th day of July, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

Telephone: (904) 488-9675

FILED with the clerk of the Division of Administrative Hearings this 20th day of November, 1980.

COPIES FURNISHED:

Jack L. Poitinger, Jr.

P.O. Box 6144

Tallahassee, Florida 32301

William S. Stevens, III, Esquire Assistant Attorney General Department of Legal Affairs Civil Division

725 South Calhoun Street Tallahassee, Florida 32304

Secretary of State State of Florida The Capitol

Tallahassee, Florida 32304

Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32304

Docket for Case No: 76-000936RX

Orders for Case No: 76-000936RX