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Security Industry Updates

March 14, 2008

Legislative Update - Week 2

Common Issues:

The legislative session this year is focused on budget matters. The economic downturn in the state has the Governor and the legislature scrambling to find money to balance the budget, a constitutional requirement.

To identify the necessary savings, the legislature has submitted inquiries to all state agencies in an attempt to identify "available" funds and where cuts can be instituted. The mood is desperate and the legislative budget committees have undertaken sever measures to find around $2 billion.

The Governor has recommended that $2 million of that come from the Div of Licensing trust fund. Yesterday, in his presentation to the Senate Appropriations Committee, Commissioner Bronson proposed the $2 million "sweep" from the Div of Licensing trust fund. That grab of licenses' money will be the single largest source of funds "found" by the Department of Ag to meet the funding goals requested of the Department by the legislature. How that "sweep" of the trust fund will impact Div operations, present or future, remains to be seen. The final decision on whether or not that money will be taken out of the trust fund will be made later in the legislative session.

The Division's policy on the wearing of firearms by licensed Class G security officers continues to be a controversial matter. The basis of the controversy is the division's interpretation of what constitutes "....in connection with those duties" as that term is used a Sec. 493.6115(3). The Div interprets it very narrowly to mean an armed officer must remove his weapon if he or she leaves the actual duty station. That interpretation extends to prohibiting armed officers from carrying their weapon when they go to eat, to the restroom, while gassing up the company vehicle, or while enroute to or from the duty station, regardless of duty requirements. An armed officer assigned to a guarded gate must remove his firearm if he leaves the gate area for any reason.

Now a case has come up where the Div investigator has determined that armed supervisors should have removed their firearms while the supervisors were in the course of conducting a site survey of a property in a high crime area in which their agency had a pending contractual interest.

The security industry strongly supports severe penalties for licensees who improperly exhibit or handle their firearms in an immature, dangerous or unprofessional manner. However, the implementation or continuation of an overreaching and repressive policy that creates siginificant operational dangers to licensees and the public is counterproductive and is unsound regulatory practice.

Division's firearms policy is equally applicable to the PI profession. It leaves open for Div interpretation when and where an armed PI in on duty. For instance, must a PI remove and secure his firearm when he is enroute to a surveillance or an interview? May he or she continue to wear the firearm when headed home? Those are just a few of the unanswered questions currently being left to the Division's interpretation of the law. Remember, a legal interpretation by the Div is valid only until it is either changed by the Division or overturned by a higher authority, the courts.

At the request of the security industry, this matter will be on the agenda for the PIRSAC meeting scheduled for Miami on March 27. It is a matter that should be of great professional interest to security officers and private investigators who also possess a Class G statewide firearms license.

A less repressive, more operationally viable policy is the objective. A policy should punish the violators, not the entire industry.

Private Investigations:

Our legislation regarding window tinting is moving well. As currently written, the bill will allow the use of darkest tint (limo tint) on vehicles owned or leased by a licensed PI Agency. It will primarily benefit those PIs who conduct vehicle surveillances and video surveillances in agency owned vehicles. It is intended to reduce the compromise rates of such activities.

For those of you who has asked where our bill is, the answer is we don't have one. The window tinting has been amended to the DMV legislative package. If you want to view that rather lengthy bill go to the legislative site and look under Senate bill 1992. Our wording is found at lines 393-402. That bill passed the first Senate committee Wednesday. It only has one more committee reference.

In the House, our language was amended on to the House DMV package yesterday. That bill number is HB 1111. It passed out of the House Infrastructure committee yesterday and no opposition is anticipated.

Yesterday, I met with Rep. Planas, sponsor of House bill 943. That bill deals with the Capital Collateral Regional Counsels around the state, Ch 27 of the Florida Statutes. That is the agency that exists to represent criminal defendants who have been sentenced to death by the trial courts. Its real purpose is to speed up the appeal process.

Current legislation at Sec. 27.711 allows the appointed attorneys to use "investigators" to assist them in their appeal cases. That language is referring to outside rather than in-house investigators and fails to require licensure as a PI. At the conclusion of our meeting, Rep Planas agreed to amend his bill to correct this apparent disregard of the licensing requirements of Ch. 493. He was provided the language to do that.

This situation is not uncommon. There have been and there still are statutes addressing investigative or security services that are in conflict with Ch. 493. When we find them we move to eliminate them from state laws or amend them to require proper licensure, or get state agencies to change their policies or procedures. Another example is the Department of Management Services allows unlicensed investigative and security companies to bid on state contracts, a clear violation of Ch. 493.

Regarding the ongoing effort to get clarifying language from the state Department of Revenue about PI's being required to collect the sales/use tax for PI services provided to law firms. The legal community is exempt from the requirement to collect and remit the tax. The issue is whether or not law firms should have to pay the tax to PI's when they have no statutory authority to collect it from their client. I have done a lot of research on this issue and met with a firm in Jax that has agreed to file the request for an opinion from DOR. However, this effort has taken second chair to my lobbying duties and I expect I will not do much more on it until after the session.

Private Security:

The primary thrust of the security industry this year is, of course, legislation to authorize licensed security officers to "detain and hold" criminal suspects for law enforcement. The language requires the officer be in uniform and to be on the client's property.

The bill is scheduled for hearings later in the session, but has no apparent opposition.

Our sonsor in the Senate, Sen. Victor Crist, is a strong advocate and friend of the security industry. His stature in the Senate is well recognized.

Yesterday, I was able to tender FASCO's support of another Crist bill that offers greater protection to law enforcement officers by eliminating the defense that the officer committed a violation of the law in the course of his arrest. The bill will allow the court to disregard that defense if the officers actions are found to have been in good faith. It was an excellent opportunity for the security profession to support law enforcement. The Florida Sheriff's Association also went on record as being in support and thanked me for our support. Sen Crist appreciated our support also. It was an excellent opportunity for FASCO to partially return his sponsorship of our legislation.

Political Contributions:

In response to those of you who have indicated a desire to make campaign contributions to various legislators, please hold them until after the session ends, currently scheduled for May 2. Under Florida law legislators are prohibited from accepting contributions during the session.

Thank you to those of you who have previously contributed. Contributions are the lifeblood of the campaign process and are not usually forgotten. On your behalf I have attended various fundraisers leading up to this session. Your contributions are always well received. Thanks to those of you who have chosen to support your profession through your contributions.

Our overall objective during each legislative session is to give the investigative and security professions a strong presence, a high visibility. It is to make certain the legislators come to know and respect those professions. A constant presence throughout the year through contributions is one way to do that. Another way to for your lobbyist to always be there, to be the source of information to the legislators. Once they recognize the role of our professions in our society, especially since 9/11, the more they listen when we speak. Recognition, access and credibility are our primary tools.

Please let me know if you wish to make a contribution. I will be happy to make a recommendation of a recipient who will be most beneficial to the security and investigative professions.

I will be calling on some of you to come to Tallahassee for appearances before legislative committees in support of our legislation. Thanks to those of you who have offered your expertise, it makes a difference.

Ben Poitevent, ESQ.

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