HomeMy WebLinkAboutSeminole County Sheriff's Office Winter Springs Risk Protection Agreement 2018 05 23 •
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May 16, 2018
Kevin Smith — City Manager
City of Winter Springs
1126 East S.R. 434
Winter Springs, Florida 32708
RE: Winter Springs Risk Protection
Dear Mr. Smith:
Enclosed please find the original Risk Protection Order Processing Agreement
between the Sheriff and the City of Winter Springs, drafted and ready for execution. The
Sheriff has already signed the agreement. I am sending this to you pursuant to the
attached e-mail correspondence.
Sincerely,
Mary An. Klein
General Counsel
407-665-6672
Enclosures
100 Eslinger Way • Sanford,Florida 32773 • 407-665-6600 • www.seminolesherifforg
RISK PROTECTION ORDER FILING AGREEMENT BETWEEN
THE SEMINOLE COUNTY SHERIFF'S OFFICE AND
THE CITY OF WINTER SPRINGS
THIS AGREEMENT is made and entered into this day of , 2018, by
and between Sheriff DENNIS M. LEMMA, as Sheriff of Seminole County, hereinafter referred to
as "SHERIFF," a Constitutional Officer of the political subdivision of Seminole County, Florida,
whose address is 100 Eslinger Way, Sanford, Florida 32773, and the City of Winter Springs, a
municipal corporation organized under the laws of the State of Florida, hereinafter referred to as
"CITY", whose address is 1126 East S.R. 434, Winter Springs, FL 32708, (hereinafter referred to
collectively as "Parties").
WHEREAS, in accordance with Sections 163.01 (2) and 163.01 (14) Florida Statutes, the
SHERIFF and the CITY are authorized to enter into inter-local agreements for the provision of
services; and
WHEREAS, Florida Statute Section 790.401 was created by the Florida legislature
through Session Laws of Florida, 2018-3, § 16, eff. March 9, 2018 and is known as the Risk
Protection Order Act; and
WHEREAS, the Risk Protection Order Act was created to temporarily prevent individuals
who are at high risk of harming themselves or others from accessing firearms or ammunition by
allowing law enforcement officers or a law enforcement agency to obtain a court order when there
is demonstrated evidence that a person poses a significant danger to himself or herself or others,
including significant danger as a result of a mental health crisis or violent behavior; and
WHEREAS, the express purpose and intent of the Risk Protection Order Act is to reduce
deaths and injuries as a result of certain individuals' use of firearms while respecting constitutional
RPO Agreement/Sheriff and City of Winter Springs Page 1 of 17
,
rights by providing a judicial procedure for law enforcement officers or law enforcement agencies
to obtain a court order temporarily restricting a person's access to firearms and ammunition; and
WHEREAS, the Parties recognize that seeking a Risk Protection Order ("RPO") pursuant
to Section 790.401, Florida Statute may be necessary to protect individuals from harming
themselves or others in the near future and beyond by possessing or purchasing firearms or
ammunition and with that, standards and safeguards are necessary to protect the rights of
respondents and the due process of law; and
WHEREAS, the Winter Springs Police Department is the Law Enforcement Agency of the
City of Winter Springs; and
WHEREAS, the Winter Springs Police Department is not a separate legal entity and all
references to the CITY herein shall include the Winter Springs Police Department, hereinafter
referred to as WSPD or AGENCY, which has been granted explicit authority under s. 790.401,
Florida Statutes, to petition for RPOs;
WHEREAS, the CITY agrees to the legal filing and processing of these matters by the
SHERIFF'S Office of General Counsel in the name of the CITY; and
WHEREAS, the PARTIES recognize there are significant features of the Risk Protection
Order Act such as the following:
• Allows the law enforcement officer or the law enforcement agency to petition the court for
the risk protection order. The Petition need not be filed by an attorney.
• Law enforcement can seek a Risk Protection Order and also seek a Temporary Ex parte
Risk Protection Order be entered before a Hearing on Final Order of Risk Protection
• The Petition is filed in the county where the petitioner's law enforcement office is located
or the county where the respondent resides.
• There are no filing fees or service fees.
• The Petition is filed in and heard by the Circuit Court.
RPO Agreement/Sheriff and City of Winter Springs Page 2 of 17
• The Petitioner may request that a temporary ex parte risk protection order be issued
without notice to the respondent, by including in the petition detailed allegations based on
personal knowledge that the respondent poses a significant danger of causing personal injury to
himself or herself or others in the near future by having in his or her custody or control, or by
purchasing, possessing, or receiving a firearm or ammunition.
• The court must hear the ex parte Petition within 24 hours of the Petition being filed or on
the next following business day.
• If an Ex Parte Petition is granted than a hearing on a Final Order of Risk Protection must
be set within 14 days of the Order Setting the hearing.
• The Petition must be accompanied by an affidavit made under oath stating the specific
statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by
the respondent based upon personal knowledge of the affiant.
• The Petition must also identify the quantities, types, and locations of all firearms and
ammunition the petitioner believes to be in the respondent's current ownership, possession,
custody, or control.
• The Petition must identify whether there is a known existing protection order governing
the respondent under section 741.30 Florida Statute, section 784.046 Florida Statute, Section
784.0485 Florida Statute, or under any other applicable statute.
• There must be a good faith effort to provide notice to a family or household member of the
respondent and to any known third party who may be at risk of violence. The notice must state
that the petitioner intends to petition the court for a risk protection order or has already done so,
and must include referrals to appropriate resources, including mental health, domestic violence,
and counseling resources. The petitioner must attest in the petition to having provided such notice
or must attest to the steps that will be taken to provide such notice.
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• The Petition, Temporary Ex Parte Order and Notice of Hearing on the Final Order are
required to be served on the Respondent at the same time.
• Any Temporary Ex Parte Risk Protection Order and any Final Risk Protection Order must
require the Respondent to immediately surrender any firearms, ammunition and concealed carry
permit he owns in his possession, custody or control to law enforcement upon service of the Order
and additional hearings are required to verify that the Respondent has complied with the RPO
surrender requirement.
• The law sets forth considerations for the court to consider in whether to grant a Risk
Protection Order.
• Hearings are held by the Court for a temporary ex parte order as well as a final RPO.
• The rules of evidence apply to the same extent as in a domestic violence injunction.
• The temporary ex parte RPO is valid until the final hearing.
• The final RPO is valid for a period up to 12 months, but can be extended upon Motion by
the Petitioner.
• The respondent has the right to request a hearing to vacate the RPO as well as any
extension.
• Service of RPOs takes priority over other process except where other process is similar
in nature (for example Injunctions for protection).
• Within 24 hours after issuance of an RPO, the clerk of the court must enter any RPO or
temporary ex parte RPO into the uniform case reporting system and forward a copy of the RPO
issued to law enforcement for service.
• The Court must notify the petitioner of the impending end of a RPO. Notice must be
received by the petitioner 30 calendar days before the date the RPO ends.
• When the law enforcement agency gets its copy from the clerk of the court, the law
enforcement agency must enter the order into certain criminal databases. The RPO must remain
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in each system for the period stated in the RPO, and the law enforcement agency shall only
remove orders from the systems that have ended or been vacated. Entry into the Florida Crime
Information Center and National Crime Information Center constitutes notice to all law
enforcement agencies of the existence of the RPO. The RPO is fully enforceable in any county.
• If an RPO is vacated, the clerk of the court shall, on the day it was vacated, forward a copy
of the RPO to the Department of Agriculture and Consumer Services and the appropriate law
enforcement agency specified in the RPO to vacate and upon receipt, the agency has to promptly
remove the RPO from any computer-based system in which it was entered.
• Upon the issuance of an RPO, the Court must set another hearing within 3 business days
requiring the respondent to appear and show proof that he or she has surrendered any firearms
or ammunition in his or her custody, control or possession. The Court may cancel the hearing
upon a satisfactory showing that the respondent is in compliance with the RPO.
• If time on the RPO expires or is vacated then the law enforcement agency must return the
property, provided there is no other reason why the property cannot be returned and it must notify
the family and household members and any third party subject to the notification requirement
before the return.
• If personal service of the final RPO is accomplished on the respondent at the final hearing,
the respondent shall surrender the firearms and ammunition in a safe manner to the control of the
local law enforcement agency immediately after the hearing at which the respondent was present.
• At the time of surrender, a law enforcement officer taking possession of the items shall
issue a receipt identifying all firearms and the quantity and type of ammunition that have been
surrendered and shall provide a copy of the receipt to the respondent.
• Within 72 hours after service of the RPO, the law enforcement officer serving the RPO
shall file the original receipt with the Court and shall ensure that his or her law enforcement agency
retains a copy of the receipt.
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• A search warrant for the firearms, ammunition and concealed weapons permit may be
sought if based upon a sworn statement or testimony of any person alleging and establishing
probable cause that the respondent has failed to surrender of the items.
• The Risk Protection Order Act also sets forth procedures for claimed innocent owners.
• The Risk Protection Order Act requires all law enforcement agencies to develop policies
and procedures regarding the new provisions.
• Under the Risk Protection Order Act, it is a felony of the third degree for a person subject
to a RPO to possess a firearm.
• The Risk Protection Order Act requires the Office of the State Courts Administrator to
develop standardized petition and RPO forms, which must be used after January 1, 2019.
WHEREAS, CITY has determined that it is advantageous to contract with the SHERIFF
for the provision of legal services for the legal processing of RPOs; and
WHEREAS, the PARTIES wish to memorialize their understanding of the responsibilities
and the process to be used in seeking and pursuing an RPO in accordance with Section 790.401,
Florida Statutes, as may be amended.
NOW, THEREFORE, in consideration of the complexities of the procedures, the benefits
to be realized by uniform handling,the need for mutual assistance, and the mutual understandings
and agreements set forth herein, the PARTIES agree as follows:
1) Term and Termination. This Agreement shall be effective immediately upon the date of
its execution by the last of the Parties and remain in effect until September 1, 2023, unless
earlier canceled in writing by a Party. In order for the Agreement to continue in effect
beyond September 1, 2023, this Agreement must be renewed in writing by the
participating Parties.
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2) Purpose. The purpose of this Agreement is to set forth the authority for the SHERIFF to
Petition the circuit court for the issuance of RPOs and Temporary Ex Parte RPOs (TRPO)
on behalf of the CITY pursuant to the provisions of 790.401 Florida Statutes, as may be
amended, and to set forth the process for intake, review, assistance, processing, and legal
representation.
3) Third Party Beneficiaries. This Agreement is intended to apply to the Parties to this
agreement only and there are no third party beneficiaries to this Agreement.
4) Cooperation. It is agreed that the PARTIES shall provide all reasonable and necessary
cooperation and assistance so as to facilitate this Agreement.
5) Basic Services to be provided by the Parties.
a. The SHERIFF agrees to the following:
1. To direct and authorize his Office of General Counsel, in accordance with the
provisions of 790.401 Florida Statutes, as may be amended, to file all Petitions for
RPOs including requests for TRPOs after conducting pre-filing consultation,
proper work up and follow-up discussion with the AGENCY; perform or fulfill all
statutory and/or legal requirements necessary as a result of the filing of the RPO
or TRPO, to include providing the required notice to any family, household member
and/or third party (hereinafter "Family Notice") of the filing of a Petition for RPO
where not previously provided by the AGENCY; handle all hearings, including but
not limited to Motions to Extend and Motions to Vacate; handle all appeals from
matters arising from the filing of an RPO after consultation with the CITY.
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2. Prepare and make available for use by the AGENCY, an RPO Checklist Request,
all Template Forms for use in the Risk Protection Order process to include the
following: Law Enforcement Affidavit in Support of the Petition; Witness Statement
Affidavit in Support of Petition for Risk Protection Order, Written Family Notice
indicating the agency's intent to pursue a Risk Protection Order containing a listing
of the community services available; Form Authorizing Respondent's Voluntary
Transfer to Third Party of items subject to surrender; Form Affidavit of Third Party
Accepting Transfer of Surrendered Items from Respondent; Firearm Surrender
Receipt to be filed with the clerk upon service of the Court Order which will be
provided to the agency for their records and a Search Warrant Affidavit and
Proposed Order for Search Warrant Form; Notice of Impending Return of Firearm
to Persons Entitled to Notice Form (collectively "Template Forms") and any other
Forms determined useful in the RPO process. SHERIFF shall update the
Template Forms where applicable, once the Office of the State Courts
Administrator develops and completes standardized forms pursuant to Section
790.401(14), F.S.
3. Set up an e-mail address where the CITY can email its RPO Checklist Request,
law enforcement Affidavit(s) in support of the Petition for Risk Protection Order,
any Family Notice provided and any other Template Forms used, which will be
checked daily by representatives of the SHERIFF to review the case information
submitted.
4. Conduct background research, to the extent authorized by law, regarding factors
for consideration and provide the paperwork findings to the AGENCY for inclusion
in their affidavit upon their review or for inclusion in the RPO Petition as an
attachment. The background search may include review of the following factors:
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• A previous or existing risk protection order issued against the respondent.
• A violation of a previous or existing risk protection order issued against the
respondent.
• Evidence of any prior Baker Act or Hal Marchman Act initiated against the
respondent.
• Identification of whether there is a known existing protection order governing the
person under section 741.30 Florida Statute (DV Injunction), section 784.046
Florida Statute (injunction for protection against repeat violence, sexual violence,
or dating violence) or section 784.0485 Florida Statute (injunction for protection
against stalking) or other statute.
• Evidence of any violation by the respondent of a protection order or a no contact
order issued under section 741.30 Florida Statute, section 784.046 Florida Statute,
or section 784.0485 Florida Statute.
• Whether the respondent, in this state or any other state, has been convicted of,
had adjudication withheld on, or pled nolo contendere to a crime that constitutes
domestic violence as defined in section 741.28 Florida Statute.
• Whether the respondent, in this state or any other state, has been arrested,
convicted of, had adjudication withheld on, or pled nolo contendere to a crime
involving violence or a threat of violence.
• Evidence involving the Respondent's contacts with law enforcement, which allege
the brandishing of a firearm or threats of violence.
5. Make the SHERIFF'S Domestic Violence/Crisis Intervention Team section within
the Diversified Investigative Unit available to assist the AGENCY with obtaining
witness statements on any Baker Act or suicide call involving the use of a firearm
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or threat of violence where witnesses are present at the scene or otherwise
identified by the agency.
6. Provide the AGENCY with any witness statements obtained and Family Notice
Forms obtained by SHERIFF'S personnel for the AGENCY'S scanning into THE
SHERIFF'S computerized reporting system known as CAFE under the AGENCY'S
precipitating case number and for their ability to send a full RPO Request package
to the SHERIFF as described in paragraph b.
7. The SHERIFF will serve all required Notices of Hearing, Petitions, TRPOs and
RPOs on the respondent, enter all orders into required databases, file all returns,
surrender receipts with the court, and provide a copy of any surrender receipt to
the AGENCY for the AGENCY'S records.
8. Notify the AGENCY when a Risk Protection Order is no longer in effect.
9. Provide training to the AGENCY upon request at a time and location to be mutually
agreed upon and to provide updates on any statutory changes affecting Risk
Protection Orders.
10. In response to a public records request received by the CITY pertaining to an RPO
or TRPO petition and proceeding, provide the agency with a copy of records
requested or allow the records to be inspected or copied within a reasonable time
where not otherwise exempted by law.
11. Maintain all records pertaining to an RPO or TRPO petition and proceeding in
accordance with applicable records retention schedules as required by law.
b. CITY agrees to the following:
1. Use an RPO Checklist submittal Form and Template Forms made available on the
SHERIFF'S SCSOnet Sharepoint site located under Office of the Sheriff: Legal:
RPO folder, as amended from time to time by the Office of General Counsel and
RPO Agreement/Sheriff and City of Winter Springs Page 10 of 17
to provide any and all information required for filing an RPO petition and TRPO
request.
2. Attempt to identify any family, household member or third party who may be in
danger as a result of the precipitating incident or if the respondent were to possess
or have access to a firearm.
3. Attempt to obtain RPO witness statement affidavits of witnesses present at the
scene of the precipitating event and call SCSO dispatch to request SHERIFF's
Domestic Violence/Crisis Intervention Team section assistance, if assistance is
needed and provide dispatch with a return call number for the AGENCY's on scene
AGENCY officer.
4. Scan all completed AGENCY officer and witness affidavits, Family Notices and
other Template Forms completed into CAFE under the agency's case number,
which precipitated the request for an RPO whether agency obtained or obtained
by the SHERIFF's Domestic Violence/Crisis Intervention Team section.
5. Send a scanned copy of the RPO Request Checklist, any RPO supporting
affidavits, Family Notice Forms and other Template Forms upon completion to
RPOrequest@seminolesheriff.org.
6. Provide an AGENCY officer upon request by the SHERIFF to be an escort for the
SHERIFF'S Civil Process Division when it serves any RPO or TRPO.
7. Take into possession any firearms, ammunition, concealed weapon permit
surrendered by the Respondent at the time an RPO or TPRO is served, and
maintain custody of such items at the CITY in accordance with AGENCY policy
and the requirements of the RPO/TRPO.
8. Attend any hearings upon request of the SHERIFF without the need for subpoena.
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9. Be responsible for preparation of a search warrant, if necessary, as authorized by
Florida Statute 790.401.
10. Provide SHERIFF a designated point of contact where SHERIFF may
communicate requests, needs, case status information, Notices of Hearings and
other pertinent case information within ten (10) days of the execution of this
agreement.
11. Payment of any and all costs associated with the processing of a Risk Protection
Order such as discovery costs and costs for any appeal taken arising from the filing
of a Risk Protection Order.
12. Provide Notice of Impending Firearm Return to persons entitled to such Notice.
c. The SHERIFF AND CITY both agree to the following:
1. To comply with any Administrative Order, which now exists or might exist in the
future as put in place by the Court with regard to the processing, and handling of
Risk Protection Orders as it affects Seminole County and with any legislative
amendments to Florida Statute 790.401.
2. The PARTIES agree to work together to make adjustments to this Agreement as
may be needed as a result of any legislative changes or Court Administrative
Order and make amendments to this Agreement if such amendment is deemed
necessary by the PARTIES.
3. The CITY retains the ultimate right to halt, terminate, or assume responsibility and
legal control of a proceeding or corresponding action for those cases originating
within the CITY.
RPO Agreement/Sheriff and City of Winter Springs Page 12 of 17
4. The PARTIES agree and recognize that the SHERIFF will be corresponding
directly with the AGENCY on Risk Protection matters and that approval to file a
Risk Protection Order will be made by the AGENCY. Any decision by the CITY to
halt, terminate, or assume responsibility and legal control of an RPO proceeding
or corresponding action for those cases originating within the City will be
communicated to the AGENCY. Communication to the SHERIFF will be made at
RPOService@seminolesheriff.org.
6) Indemnification. The PARTIES to this Agreement agree to assume its own liability and
responsibility for the acts, omission, or conduct of such PARTY'S own employees in
connection with this Agreement or any actions undertaken in relation to this Agreement,
subject to the provisions of Section 768.28 and 790.401, Florida Statutes, where
applicable. All personnel remain ultimately accountable to their respective employing
agencies. In turn, each employing agency remains responsible for such employees and
assumes any liability for the actions of its employees. Pursuant to 768.28(19) Florida
Statutes, neither the SHERIFF nor CITY waives any defense of sovereign immunity, or
increases the limits of its liability, upon entering into this Agreement. This Agreement does
not contain any provision that requires one party to indemnify or insure the other party for
the other party's actions, or to assume any liability for the other party's actions.
7) Dispute Resolution. This Agreement shall be governed by and construed with the laws
of the State of Florida. Venue shall be in Seminole County, Florida. The SHERIFF or his
appointed designee and the Chief of the WSPD or his designee shall resolve minor
disputes.
RPO Agreement/Sheriff and City of Winter Springs Page 13 of 17
8) Notices. Whenever any party desires to give notice unto the other party, notice may be
sent to:
For SHERIFF
Office of General Counsel
Seminole County Sheriff s Office
100 Eslinger Way
Sanford, FL. 32773
(407) 665-6603
RPOservice@seminolesheriff.org
(Note this email is different from the email for submission of the RPO package)
For CITY
Kevin Brunelle, Chief of Police
Winter Springs Police Department
300 North Moss Rd
Winter Springs, FL 32708
(407) 327-1000
pnolette@winterspringsfl.org
9) Entire Agreement. It is understood and agreed that the entire Agreement of the parties
is contained herein and that this Agreement supersedes all oral Agreements and
negotiations between the parties relating to the subject matter hereof, as well as any
previous Agreement presently in effect between the parties relating to the subject matter
hereof. Any alterations, amendment, deletions, or waivers of the provisions of the
Agreement shall be valid only when expressed in writing, approved by the respective
parties and duly executed on behalf of each party as set forth herein.
10)Severability. If any provision of this Agreement shall be declared invalid for any reason,
such invalidity shall not affect any of the remaining provisions of this Agreement.
RPO Agreement/Sheriff and City of Winter Springs Page 14 of 17
SIGNATURES CONTINUE NEXT PAGE
RPO Agreement/Sheriff and City of Winter Springs Page 15 of 17
Seminole County Sheriff's Office
Dennis M. Lemma, Sheriff
ACCEPTANCE OF THE
RISK PROTECTION ORDER REPRESENTATION PROCESSING AGREEMENT
Pursuant to F.S. 163.01 (2) and 163.01 (14) this agreement may be entered into by a chief
executive officer of the agency who is authorized to contractually bind the agency. By signing
below, an indication of such authorization is being made.
In acknowledgment and e =- , tion of the RISK PROTECTION ORDER REPRESENTATION
PROC -- G AGREE
//
e"'(--e- c------ 0 5/6/00/,
Dennis M. Le - Dat
Sheriff of Seminole County, Florida
STATE OF FLORIDA
COUNTY OF SEMINOLE
BEFORE ME, this I(p day of Mali 2018, an officer duly
authorized by law to administer oaths and take acknowlejgments, personally appeared DENNIS
LEMMA, Sheriff of Seminole County, who is personally known to me and who acknowledged the
executed foregoing Agreement.
eu•ee Notary Public State of Florida
Kayla Nylander
y� I My Commission GG 201502
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Signa ure Typed Stamper Print Name
Notary Public
My Commission expires: 3/3' 1 9-)
FOR USE AND RELIANCE ONLY BY
THE SHERIFF OF SEMINOLE COUNTY, FLORIDA
APPROVED AS TO FORM AND LEGALITY THIS
,`pLt
DAY OF J LLG' i20111
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BY: , 20 J
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RPO Agreement/Sheriff and City of Winter Springs Page 16 of 17
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City of Winter Springs
Kevin L. Smith, City Manager
ACCEPTANCE OF THE
RISK PROTECTION ORDER REPRESENTATION PROCESSING AGREEMENT
Pursuant to F.S. 163.01 (2) and 163.01 (14) this agreement may be entered into by a chief
executive officer of the agency who is authorized to contractually bind the agency. By signing
below, an indication of such authorization is being made.
2 j
5/023
KTei---7/
y' L. Smith ,,it na er Date /
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206
C. y of WinterIngs, Florida
STATE OF FLORIDA
COUNTY OF SEMINOLE
BEFORE ME, this �
�3 rday of May 2018, an officer duly
authorized by law to administer oaths and take acknowledgments, personally appeared Kevin L.
Smith, City Manager for the City of Winter Springs, Florida, who is personally known to me and
who acknowledged the executed foregoing Agree -
r'Al'. CASEY CARMAN
'`i Notary Public-State of Florida
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-�'t My Comm.Expires Mar 31.2019
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My Commission expires:M_ __ , 9/q
RPO Agreement/Sheriff and City of Winter Springs Page 17 of 17