Fla. Admin. Code Ann. R. 34-17.010 - Probable Cause Determination
(1) Notification
of Completion of Investigation. When the investigator's report is completed,
the Executive Director shall notify the respondent that the report is completed
and shall send to the respondent a copy of the investigator's report. The
investigatory report must be transmitted to the alleged violator no later than
5 days after completion of the report. The investigatory file and main referral
file shall be open for inspection by the respondent and the respondent's
counsel at that time, and copies may be obtained at no more than
cost.
(2) Time to Review Report.
The respondent shall be given not less than 14 days from the date of mailing of
the investigator's report, within which time to file with the Commission a
written response to the investigator's report. This time period may be
shortened with the consent of the respondent, or without the consent of the
respondent when the passage of time could reasonably be expected to render moot
the ultimate disposition of the matter by the Commission so long as reasonable
notice under the circumstances is given.
(3) Advocate's Recommendation. The
investigatory report must be transmitted to the counsel representing the
Commission (the Advocate) no later than 5 days after completion of the report.
The Advocate shall review the investigator's report and make a written
recommendation to the Commission for the disposition of the referral no later
than 15 days after he or she receives the completed investigatory report. The
Advocate's written recommendation to the Commission for the disposition of the
referral must include a statement of what charges shall be at issue at the
probable cause hearing. A copy of the recommendation must be transmitted to the
respondent no later than 5 days after its completion. The respondent shall be
given 14 days from the date of mailing of the Advocate's recommendation to file
with the Commission a written response to the recommendation. This time period
may be shortened with the consent of the respondent, or without the consent of
the respondent when the passage of time could reasonably be expected to render
moot the ultimate disposition of the matter by the Commission, so long as the
recommendation is furnished to the respondent within a reasonable period of
time under the circumstances.
(4)
Notice of Probable Cause Hearing and Right to Attend. Upon receipt of the
Advocate's recommendation, the Commission shall schedule a probable cause
hearing for the next Commission meeting for which notice requirements can be
met. The respondent, a representative from the referring agency, their counsel,
and the Advocate shall be permitted to attend the hearing at which the probable
cause determination is made. Notice of the probable cause hearing shall be sent
to the respondent, the referring agency, and Advocate at least 14 days before
the hearing. This time period may be shortened with the consent of the
respondent, or without the consent of the respondent when the passage of time
could reasonably be expected to render moot the ultimate disposition of the
matter by the Commission, so long as the notice is furnished within a
reasonable period of time under the circumstances.
(5) Scope of Probable Cause Determination.
The probable cause determination is the conclusion of the preliminary
investigation. The respondent and the Advocate shall be permitted to make brief
oral statements in the nature of oral argument to the Commission, based on the
investigator's report, before the probable cause determination. The
Commission's determination shall be based upon the investigator's report, the
Advocate's recommendation, the referral, and staff recommendations, as well as
any written statements submitted by the respondent and any oral statements made
at the hearing. No testimony or other evidence will be accepted at the
hearing.
(6) Probable Cause
Determination. At its meeting to determine probable cause, the Commission may
continue its determination to allow further investigation; may order the
issuance of a public report of its investigation if it finds no probable cause
to believe that a violation of the Code of Ethics or other breach of public
trust has occurred, concluding the matter before it; may order a formal hearing
of the referral if it finds probable cause to believe that a violation of the
Code of Ethics or other breach of public trust has occurred; or may take such
other action as it deems necessary to resolve the referral, consistent with due
process of law. In making its determination, the Commission may consider:
(a) The sufficiency of the evidence against
the respondent, as contained in the investigator's report;
(b) The admissions and other stipulations of
the respondent, if any;
(c) The
nature and circumstances of the respondent's actions;
(d) The expense of further proceedings;
and
(e) Such other factors as it
deems material to its decision. If the Commission orders a public hearing of
the referral, the Commission shall determine what charges shall be at issue for
the hearing.
(7) Finding
of Probable Cause. If the Commission finds probable cause to believe a breach
of the public trust has been committed, it must transmit a copy of the order
finding probable cause to the alleged violator no later than 5 days after the
date of the probable cause determination.
(a)
Upon request submitted to the Commission in writing, any person whom the
Commission finds probable cause to believe has committed a violation is
entitled to a public hearing and may elect to have a formal administrative
hearing conducted by an administrative law judge in the Division of
Administrative Hearings.
(b) If the
person does not elect to have a formal administrative hearing by an
administrative law judge, the person is entitled to have an informal hearing
conducted by the Commission.
(c)
Such person is deemed to have waived the right to a formal or informal public
hearing if the request is not received within 14 days of the mailing date of
the probable cause notification.
(d) If the Commission conducts an informal
hearing, it must be held no later than 75 days after the date of the probable
cause determination.
(e) If the
Commission refers a case to the Division of Administrative Hearings for a
formal hearing and subsequently requests that the case be relinquished back to
the Commission, or if the administrative law judge assigned to the case
relinquishes jurisdiction back to the Commission before a recommended order is
entered, the Commission must schedule the case for additional action at the
next Commission meeting for which notice requirements can be met. At that
Commission meeting, the Commission must complete final action on such
case.
Notes
Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., 112.322, 112.324 FS.
New 11-24-13.
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No prior version found.