Fla. Admin. Code Ann. R. 34-5.006 - 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 and a copy
of the Executive Director's order to investigate. 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 complaint 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 disposition of the
complaint no later than 15 days after he or she receives the completed
investigatory report. The Advocate's shall review the investigator's report and
shall make a written recommendation to the Commission for the disposition of
the complaint must include a statement of what charges shall be at issue at the
probable cause hearing. A copy of the recommendation must be transmitted shall
be furnished 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, the complainant(s), 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,
complainant(s), 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 complaint, 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 final, public hearing of
the complaint 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 complaint, 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 complaint, 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 complainant and 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 the
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 before 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(f), (h), Fla. Const., 112.322, 112.324 FS.
New 4-7-77, Amended 9-21-77, 7-13-80, 2-21-83, 11-14-85, Formerly 34-5.06, Amended 2-19-91, 7-7-91, 7-5-92, 7-28-98, 9-4-12.
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