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HomeMy WebLinkAboutSeminole County Sheriff's Office Winter Springs Risk Protection Agreement 2018 05 23 • i 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. RPO Agreement/Sheriff and City of Winter Springs Page 3 of 17 • 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 RPO Agreement/Sheriff and City of Winter Springs Page 4 of 17 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. RPO Agreement/Sheriff and City of Winter Springs Page 5 of 17 • 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. RPO Agreement/Sheriff and City of Winter Springs Page 6 of 17 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. RPO Agreement/Sheriff and City of Winter Springs Page 7 of 17 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: RPO Agreement/Sheriff and City of Winter Springs Page 8 of 17 • 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 RPO Agreement/Sheriff and City of Winter Springs Page 9 of 17 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. RPO Agreement/Sheriff and City of Winter Springs Page 11 of 17 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 �lave Expires 0312812022 r ‘`/Alit) \ 1�,� OIlder 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 /�,/ BY: , 20 J i1t1(� ''t�[ ' C-L''u. i %.c_ RPO Agreement/Sheriff and City of Winter Springs Page 16 of 17 e 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 / y 9 206 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 iiirl . Commission#►FF 215744 -�'t My Comm.Expires Mar 31.2019 Bonded ttxoughNational Notly Apn. 7 ' natur= Type, Stamp or Print Name Notary ' •Iic My Commission expires:M_ __ , 9/q RPO Agreement/Sheriff and City of Winter Springs Page 17 of 17