STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

LENORA R. ANDERSON, )

)

Respondent. )

Case No. 04-2954PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 12, 2004, in Clewiston, Florida, before Susan B. Harrell,1 a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: Lenora R. Anderson, pro se

1038 Virginia Avenue Post Office Box 1606

Clewiston, Florida 33440 STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and Florida

Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On June 18, 2004, Petitioner, the Criminal Justice Standards and Training Commission, issued an Administrative Complaint against Respondent, Lenora R. Anderson (Anderson), alleging that she violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a). Anderson requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge.

At the final hearing, Petitioner called Chad E. Pelham, Larry Preece, and Kelly Jean Taylor as its witnesses.

Petitioner's Exhibits 1 through 5 were admitted in evidence. Respondent testified in her own behalf, and Respondent's Composite Exhibit 1 was admitted in evidence.

The parties agreed to file proposed recommended orders within ten days of the filing of the Transcript, which was filed on November 9, 2004. Petitioner filed Petitioner's Proposed Recommended Order on November 19, 2004; however, the Proposed Recommended Order dealt with another case and not the instant case. To date, Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. Anderson is a certified correctional officer, certified by Petitioner. Her certificate number is 190482. At the time of the incident at issue, Anderson was working for the Wackenhut Corrections Corporation as a correctional officer at South Bay Correctional Facility.

2. On May 27, 2003, Patricia Johns (Johns) was in the Wal-Mart parking lot in Clewiston, Florida. Johns was taking groceries she had purchased from a shopping cart and placing

   them in her vehicle. She placed her sweater and her purse in a shopping cart while she was loading the groceries. Johns retrieved her sweater from the cart, but left her purse in the cart. She pushed the cart with the purse in it between her vehicle and another vehicle, got into her vehicle, and left the parking lot.

3. A few seconds later Anderson pulled into Johns' parking space. Anderson's vehicle bumped the shopping cart, pushing it forward a couple of feet. She got out of her vehicle, went over to the cart, and removed the purse. Anderson, while wearing her correctional officer uniform, placed the purse in the backseat of her vehicle, took her son out of the vehicle, and went into Wal-Mart. She did not take the purse into Wal-Mart and attempt to locate the owner.

4. The purse was a Tommy Hilfiger brand valued at $50.

   
   

   Inside the purse was a wallet with $18 in cash, a credit card, and blank checks. A cellular telephone valued at $350 was also in the purse.

5. Anderson picked up some prescriptions at Wal-Mart, returned to her vehicle, and eventually returned home. She knew that the purse did not belong to her, but claimed that she was planning to turn the purse in at the police department the next day. Her claim that she was going to turn the purse into the police is not credible based on later actions. Sometime after she had returned home, she remembered she had put the purse in the back of her vehicle and asked her fiancé to get the purse. When he went to retrieve the purse, only the wallet remained minus the cash.

6. During the time that Anderson left Wal-Mart and the time that her fiancé discovered that the purse, cash, and cellular telephone were missing, both Anderson and her fiancé had driven the vehicle while carrying other passengers. Anderson did not remove the purse, cash, and cellular telephone from the vehicle. She believes that one of the other passengers who had been riding in her vehicle on May 27, 2003, took the purse, cash, and cellular telephone.

7. The next day, Anderson placed the wallet in a zip-lock plastic bag and dropped it in a drop box at the post office.

   She did not notify the owner of the purse that she had taken the purse from the Wal-Mart parking lot, and did not notify the police until later that she had taken the purse.

8. Johns reported to the police that her purse had been stolen. An investigation ensued, and it was learned based on a video tape of the Wal-Mart parking lot on May 27, 2003, that Anderson had taken the purse.

9. A police officer attempted to contact Anderson by telephone concerning the incident. On June 9, 2003, Anderson gave a taped interview to police officers, in which she admitted taking the purse out of the shopping cart and placing it in the backseat of her car. She was arrested for grand theft and released on the same day after posting a bond.

10. An information for grand theft, a third degree felony, was entered against Anderson on August 13, 2003. She agreed to make restitution in the amount of $419, and a Notice of Nolle Prosequi was entered on December 5, 2003.

11. As a result of the incident at issue, Anderson was dismissed from her position as a correctional officer at South Bay Correctional Facility. She is sincerely sorry for her actions and has made restitution for the property taken.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004).

13. Petitioner has the burden to establish the allegations of the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne and Company, 670 So. 2d 932 (Fla. 1996). The Department has alleged that Respondent is guilty of violating Subsections 943.1395(6), 943.1395(6), and 943.13(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a) by the following action:

    On or about May 27, 2003, the Respondent, Lenora R. Anderson, did knowingly obtain or use, or endeavor to obtain or use money or property valued at three hundred dollars ($300) or more, the property of another, to- wit: Patricia Ann Johns, as owner or custodian thereof, with the intent to temporarily or permanently deprive the owner or custodian of a right to the property, or a benefit therefrom, or to appropriate the property to her own use, or to the use of any person not entitled thereto.

    
    

14. Subsections 943.1395(6) and (7), Florida Statutes (2003), provide:

    1. The Commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2).

       * * *

    2. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

       1. Revocation of certification.

       2. Suspension of certification for a period not to exceed 2 years.

       3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       5. Issuance of a reprimand.

       
       

15. Subsection 943.13(7), Florida Statutes (2003), provides that a certified correctional officer must "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

16. Florida Administrative Code Rule 11B-27.0011(4)(a), provides:

    1. For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

       1. The perpetration by an officer of an act that would constitute any felony

    offense, whether criminally prosecuted or not.

    
    

17. The Department has failed to establish that Anderson violated Subsection 943.1395(6), Florida Statutes (2003). There was no evidence presented to established that Anderson intentionally executed a false affidavit, and there is no evidence that Anderson was convicted, pled guilty to or pled nolo contendere to a crime involving a false statement or perjury.

18. The Department did establish that Anderson failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2003), and is thereby subject to discipline as specified in Subsection 943.1395(7), Florida Statutes (2003). She did knowingly take the purse and its contents, valued at over $300, with the intent to deprive Johns of the right to the property, at least temporarily.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Lenora R. Anderson is not guilty of a violation of

Subsection 943.1395(6), Florida Statutes (2003); finding that she failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2003), and defined by

Florida Administrative Code Rule 11B-27.0011; and imposing the following penalties as set forth in Subsection 943.1395(7), Florida Statutes (2003): issuance of a written reprimand and placement of Respondent on probation for two years under conditions as specified by the Criminal Justice Standards and Training Commission.

DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 7th day of December, 2004.

ENDNOTE

1/ At the time of the final hearing Administrative Law Judge Susan B. Harrell was named Susan B. Kirkland.

COPIES FURNISHED:

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Lenora R. Anderson 1038 Virginia Avenue Post Office Box 1606

Clewiston, Florida 33440

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services 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: 04-002954PL

Orders for Case No: 04-002954PL