03-004585 Brian R. Hirsch vs. Department Of Law Enforcement Status: Closed Recommended Order on Tuesday, February 10, 2004.

Summary: Break in relevant employment for more than eight years prevents Respondent from issuing equivalency-of-training exemption from law enforcement officer basic recruit training.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN HIRSCH, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4585

)

DEPARTMENT OF LAW )

ENFORCEMENT, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference on January 20, 2004. Petitioner, Petitioner's

counsel, Respondent's witness, and the court reporter attended

in Fort Lauderdale, Fl orida. The Administrative Law Judge and

Respondent's counsel attended in Tallahassee, Florida.

APPEARANCES

For Petitioner: Debi George - Alten

Post Office Box 771105

Coral Springs, Florida 33071

For Respondent: Grace A. Jaye

Assistant General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

STATEMENT O F THE ISSUE

The issue is whether Petitioner is entitled to an

equivalency - of - training exemption from law enforcement officer

basic recruit training.

PRELIMINARY STATEMENT

By letter dated October 23, 2003, Respondent informed

Petitioner that he was not en titled to an equivalency - of -

training exemption from recertification requirements because he

had a break in relevant employment of more than eight years'

duration. By letter dated November 5, 2003, Petitioner

requested a formal hearing.

At the hearing, Pe titioner called one witness, and

Respondent called one witness. Neither party offered into

evidence any exhibits. The court reporter filed the transcript

on January 29, 2004.

FINDINGS OF FACT

1. Petitioner is presently employed as a transit security

offic er on the Miami Metro - Rail. Respondent certified

Petitioner as a law enforcement officer on August 23, 1981.

However, his last day of certified employment, which was with

the Dania Police Department, was July 27, 1987. Petitioner has

taken no law enforc ement classes since 1987.

2. As part of the process by which he could obtain re -

certification as a law enforcement officer, Petitioner tried to

enroll in a 92 - hour class in May 2003 at the Institute of Public

Safety at Broward Community College. The 92 - hou r classes

offered at Broward Community College fill up almost immediately

after they are announced. Petitioner eventually was able to

enroll for a 92 - hour class at Broward Community College that

started November 9, 2003.

3. Enrollment in the 92 - hour class requires Petitioner to

complete basic - recruit training or obtain an exemption from such

a requirement due to the completion of comparable training in

another jurisdiction. Petitioner thus submitted an equivalency -

of - training form (Form CJSTC 76), by which he sought an

exemption from the requirement of basic - recruit training.

4. By letter dated October 28, 2003, Respondent advised

Petitioner that he was not eligible for the equivalency - of -

training exemption because of a break of more than eight years

in re levant employment. The letter advises that recent

legislation, which had been signed into law on July 11, 2003,

prohibited the recognition of an exemption after an eight - year

break in employment.

5. Petitioner has failed to establish any basis for

estoppel . No one ever provided him with any misinformation

whatsoever, nor, of course, did Petitioner rely on any such

misinformation. Nothing precluded Petitioner from taking the

92 - hour course at a location other than Broward Community

College; evidently, for personal convenience, Petitioner tried

to enroll for the course offered only at Broward Community

College. Nothing in the record indicates if the 92 - hour courses

offered at other locations were as difficult to obtain. And, of

course, nothing prevented Pe titioner from trying to enroll in

the 92 - hour course more than a couple of months before the new

legislation became effective.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2003).

7. Petitioner has the burden of proof. Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981).

8. The relevant portion of Section 943.131(2), Florida

Statutes, provides:

If an applicant seeks an exem ption 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

cert ification 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 tha n 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.

9. Respondent reasonably interprets the second sentence of

t he quoted portion of Section 943.131(2), Florida Statutes, as

prohibiting the issuance of an equivalency - of - training exemption

to the applicant with a break in service of more than eight

years. Petitioner has demonstrated no reason in fact or law to

set a side Respondent's interpretation or application of the

statute in this case.

RECOMMENDATION

It is

RECOMMENDED that the Department of Law Enforcement enter a

final order rejecting Petitioner's request for an equivalency -

of - training exemption from basic - re cruit training due to the

break in relevant employment of more than eight years.

DONE AND ENTERED this 10th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

______________________________ _____

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Fi led with the Clerk of the

Division of Administrative Hearings

this 10th day of February, 2004.

COPIES FURNISHED:

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

Department of Law Enforcement

Post Office Bo 1489

Tallahassee, Florida 32302

Debi George - Alten

Post Office Box 771105

Coral Springs, Florida 33071

Brian Hirsch

5156 Northeast 6th Avenue #216

Fort Lauderdale, Florida 33334

Grace A. Jaye

Assistant General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

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 must be filed with the agency that

will issue the final order in this case.