Section 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.Fla. Admin. Code Ann. R. 34-5.006
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, Amended by Florida Register Volume 50, Number 249, December 24, 2024 effective 1/9/2025.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.