03-003580 Richard A. Benvenuti vs. Department Of Law Enforcement, Criminal Justice Standards And Training Commission Status: Closed Recommended Order on Monday, February 2, 2004.

Summary: Petitioner sought eligibility for equivalency of training exemption in August 2003. New law, effective July 2003, required no more than an 8-year break in employment. Petitioner had more than an 8-year break in employment. Recommend denial of exemption.

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 Administrativ e 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.

PRELIMI NARY 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 bas is 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 CJS TC 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, w hich 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 experien ce

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 v oluntarily 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

compan y, 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 Laud erdale, 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 c lass 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, 19 87.

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 m ade 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 Statut es (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, 19 84, 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:

* * *

(9) Complete a commission - approved basic

recruit training program for the applicable

criminal justice discipline, unless exempt

under this subsection. An applicant who

has:

(a) Completed a comparable basic recruit

training program for the appli cable criminal

justice discipline in another state or for

the Federal Government; and

(b) 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

recr uit 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 veri fy 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 employ ment 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. A n 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 afte r 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. T he "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 statutor y 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 Enforceme nt,

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, Le on 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

Tallaha ssee, 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.