STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD A. BENVENUTI, )

)

Petitioner, )

)

vs. ) Case No. 03-3580

) DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held by video teleconference in this case on November 17, 2003, with connecting sites in Fort Lauderdale and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard A. Benvenuti, pro se

4733 Northwest 9th Avenue Deerfield Beach, Florida 33064

For Respondent: Grace A. Jaye, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner’s Equivalency of Training Out-of-State/Federal Officer Form (CJSTC-76) should be approved.

PRELIMINARY STATEMENT

Richard A. Benvenuti made application to the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, hereinafter CJSTC, to take the Equivalency of Training Course for re-certification as a Florida Certified Police Officer and completed the Equivalency of Training Out-of- State/Federal Officer Form (CJSTC-76), hereinafter Equivalency Form. By notice dated August 25, 2003, CJSTC notified

Mr. Benvenuti that approval of the Equivalency Form was denied on the basis that he failed to meet the requirements of the Equivalency of Training law, which became effective July 11, 2003, because his Equivalency Form showed that he had over an eight-year break in employment. By letter dated September 22, 2003, Mr. Benvenuti requested a formal hearing. On October 1, 2003, this matter was referred to the Division of Administrative Hearings.

At hearing, Mr. Benvenuti testified in his own behalf and entered three exhibits (Petitioner’s Exhibits numbered 1-3) into evidence.1 CJSTC did not present the testimony of any witnesses

and entered six exhibits (Respondent's Exhibits numbered 1-6) into evidence.2

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on December 15, 2003. An extension of time for filing post-hearing submissions was filed and granted. Both parties filed post-hearing submissions, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Benvenuti is seeking eligibility for an equivalency of training exemption from basic recruit training.

2. Mr. Benvenuti has approximately 18 years of experience in law enforcement, fire, and emergency medical service.

3. Mr. Benvenuti was employed as a firefighter in the State of Connecticut, with the City of New London, from January 1971 to July 1979. He was also employed as a police officer in the State of Connecticut, with the Town of Waterford, from June 1977 through December 1998, when he was not on shifts with the City of New London as a firefighter.

4. Additionally, Mr. Benvenuti was the certified Fire Marshall for the City of New London and the Acting Deputy Fire Marshall for the Town of Waterford.

5. On January 7, 1985, Mr. Benvenuti was certified as a law enforcement officer in Florida and became a law enforcement officer with the Oakland Park Public Safety Department in Oakland Park, Florida. He voluntarily left the Oakland Park Public Safety Department on August 20, 1987, to return to Connecticut.

6. When Mr. Benvenuti returned to Connecticut in 1987, he was re-employed by the New London Fire Department. In 1989, because of a lower back injury, he retired.

7. Mr. Benvenuti was subsequently licensed by the State of Florida as a private investigator. He worked as a private investigator from 1991 to 2001, with a company performing investigations and surveillance. During his tenure with the company, Mr. Benvenuti received training from the United States Customs Office and the United States Drug Enforcement Administration and performed airport security in Costa Rica.

8. Mr. Benvenuti is presently the general manager of a towing company in Fort Lauderdale, Broward County, Florida. Among other things, he has constant contact with law enforcement officers.

9. Mr. Benvenuti has impressive letters of recommendation.

   
   

   The letters of recommendation include recommendations from the Chief of Police of the Waterford Police Department and of the

   Oakland Park Public Safety Department, and the Fire Chief of the City of New London.

10. During the summer of 2003, Mr. Benvenuti decided to get re-certified, as a law enforcement officer in Florida, since he had a "love" for law enforcement and after becoming aware that a friend of his had returned to school in the spring of 2003 for re-certification. Mr. Benvenuti inquired about re- certification at Broward Community College (College). The College offers the Pre-Exam Qualification Course for the Equivalency Training exam. Mr. Benvenuti was informed by the College that the class offered in July 2003 was already full and that he had to wait until the next available class was offered, which was in September 2003.

11. In August 2003, Mr. Benvenuti forwarded his information to the College to register for the class, together with the required registration fee. The class was scheduled for September 29 through October 21, 2003. Notification of his acceptance into the class was forwarded to Mr. Benvenuti on September 2, 2003, by the College.

12. On August 23, 2003, Mr. Benvenuti filed a completed Equivalency of Training Form with the CJSTC. On the Equivalency of Training Form, he indicated, among other things, that he was seeking certification as a law enforcement officer; that he was an inactive Florida officer; and that his prior criminal justice

    employment was with the Oakland Park Police Department, as a law enforcement officer from January 17, 1985 to August 20, 1987.

13. CJSTC reviewed Mr. Benvenuti's Equivalency Training Form. By letter dated August 25, 2003, CJSTC informed

    Mr. Benvenuti that, due to a recent change in the law for eligibility, which took effect July 11, 2003, his eight-year break in employment made him ineligible for equivalency training and that, therefore, his Equivalency Training Form was denied.

14. The College was not aware of the change in the law until it was re-contacted by Mr. Benvenuti regarding the denial by CJSTC.

15. Mr. Benvenuti's qualifications are not at issue in this matter.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

17. Mr. Benvenuti has the ultimate burden of proof to establish by a preponderance of the evidence that he is entitled to approval of the Equivalency Form. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981);§ 120.57(1), Fla Stat. (2003).

18. Section 943.13, Florida Statutes (2003), provides the minimum qualifications for a person to be employed or appointed as a law enforcement officer and provides in pertinent part:

    On or after October 1, 1984, any person employed or appointed as a full-time, part- time, or auxiliary law enforcement officer or correctional officer; on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional probation officer; and on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional officer by a private entity under contract to the Department of Corrections, to a county commission, or to the Correctional Privatization Commission shall:

    
    

    * * *

    
    

    1. Complete a commission-approved basic recruit training program for the applicable criminal justice discipline, unless exempt under this subsection. An applicant who has:

       1. Completed a comparable basic recruit training program for the applicable criminal justice discipline in another state or for the Federal Government; and

       2. Served as a full-time sworn officer in another state or for the Federal Government for at least 1 year provided there is no more than an 8-year break in employment, as measured from the separation date of the most recent qualifying employment to the time a complete application is submitted for an exemption under this section, is exempt in accordance with s. 943.131(2) from completing the commission-approved basic recruit training program.

          (emphasis added)

          
          

19. Section 943.131, Florida Statutes (2003), provides in pertinent part:

    
    

    (2) If an applicant seeks an exemption from completing a commission-approved basic recruit training program, the employing agency must verify that the applicant has successfully completed a comparable basic recruit training program for the discipline in which the applicant is seeking certification in another state or for the Federal Government. Further, the employing agency must verify that the applicant has served as a full-time sworn officer in another state or for the Federal Government for at least 1 year provided there is no more than an 8-year break in employment, as measured from the separation date of the most recent qualifying employment to the time a complete application is submitted for an exemption under this section. When the employing agency obtains written documentation regarding the applicant's criminal justice experience, the documentation must be submitted to the commission. The commission shall adopt rules that establish criteria and procedures to determine if the applicant is exempt from completing the commission-approved basic recruit training program and, upon making a determination, shall notify the employing agency. An applicant who is exempt from completing the commission-approved basic recruit training program must demonstrate proficiency in the high-liability areas, as defined by commission rule, and must complete the requirements of s. 943.13(10) within 1 year after receiving an exemption. If the proficiencies and requirements of s. 943.13(10) are not met within the 1 year, the applicant must complete a commission- approved basic recruit training program, as required by the commission by rule. Except as provided in subsection (1), before the employing agency may employ or appoint the applicant as an officer, the applicant must meet the minimum qualifications described in

    s. 943.13(1)-(8), and must fulfill the

    requirements of s. 943.13(10). (emphasis added)

    
    

20. The "8-year break in employment" in the statutory provisions was a new requirement, and it became effective July 11, 2003. Chapter 2003-278, Laws of Florida.

21. Mr. Benvenuti presented evidence that he is well qualified. However, his qualifications are not at issue in this matter.

22. The undersigned is convinced that Mr. Benvenuti's strong desire to be re-certified is genuine.

23. However, Mr. Benvenuti failed to demonstrate that his Equivalency Form should be approved. His Equivalency Form reflects and the evidence shows that he has over an 8-year break in employment. At the time that he submitted his Equivalency Form, the new statutory provision prohibiting an exemption for over an 8-year break in service was in effect. Because of the new statutory provisions, Mr. Benvenuti fails to qualify for exemption from completing a CJSTC-approved basic recruit program.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a

final order denying approval of Richard A. Benvenuti's Equivalency of Training Out-of-State/Federal Officer Form (CJSTC-76).

DONE AND ENTERED this 2nd day of February, 2004, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2004.

ENDNOTES

1/ All exhibits were admitted into evidence without objection.

2/ Ibid.

COPIES FURNISHED:

Richard A. Benvenuti

4733 Northwest 9th Avenue Deerfield Beach, Florida 33064

Grace A. Jaye, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Division of Criminal Justice

Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-003580

Orders for Case No: 03-003580