STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

LUCINDA J. SANDERS, )

)

Respondent. )

Case No. 05-2334PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 22, 2006, in Viera, Florida, before Susan B. Harrell, 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: Lucinda J. Sanders, pro se

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003),1 and Florida Administrative Code

Rules 11B-27.0011(4)(a), 11B-27.0011(4)(b), and

11B-20.0012(1)(f), and, if so, what discipline should be

imposed.

PRELIMINARY STATEMENT

On May 4, 2005, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commissioner, filed an Administrative Complaint against Respondent, Lucinda Sanders, alleging that she committed a battery on an inmate in violation of Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Florida Administrative Code Rules 11B- 27.0011(4)(a), 11B-27.0011(4)(b), and 11B-20.0012(1)(f).

Ms. Sanders requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on June 29, 2005, for assignment of an administrative law judge.

The final hearing was originally scheduled for September 9, 2006. At the request of Petitioner a continuance was granted, and the final hearing was rescheduled for December 15, 2005.

The final hearing was again rescheduled at the request of Ms. Sanders.

At the final hearing, Petitioner called Barry Eugene Glover, Joseph Eory Sonntag, and Bertie Gladys Florich as its witnesses. Petitioner's Exhibits 1 and 2 were admitted in evidence. Counsel for Petitioner was directed by the undersigned to submit portions of Petitioner's Exhibit 1, which

had been inadvertently omitted. On March 1, 2006, Petitioner filed a one-page fracture/sprain assessment, a two-page Report of Injury or Illness, and a one-page emergency room record, which are admitted in evidence as part of Petitioner's

Exhibit 1. At the final hearing, Ms. Sanders testified on her own behalf and submitted no exhibits for admission in evidence.

The one-volume Transcript was filed on March 27, 2006. Petitioner filed its Proposed Recommended Order on April 11, 2006. As of the date of this Recommended Order, Ms. Sanders has not filed a proposed recommended order.

FINDINGS OF FACT

1. On December 13, 1991, Ms. Sanders was certified as a correctional officer in the state of Florida. Her correctional officer certificate is numbered 122576.

2. On January 30, 2004, Ms. Sanders was employed as a sergeant by the Florida Department of Corrections at the Brevard Correctional Institution (Brevard), where Joseph Sonntag was an inmate.

3. Mr. Sonntag is a diabetic, who must have insulin injections two times each day. On the morning of Friday, January 30, 2004, Bertie Gladys Florich, a correctional officer at Brevard, went to Mr. Sonntag's cell to awake him to take him to the medical unit for his insulin injection. Mr. Sonntag pulled the cover over his head and did not get up. Ms. Florich

   told Ms. Sanders that Mr. Sonntag would not get up and asked her to tell him to get up for his injection.

4. Ms. Sanders went into Mr. Sonntag's cell, pulled the cover from Mr. Sonntag, and told his cell mate to leave the cell. Ms. Sanders snatched Mr. Sonntag by the collar of his shirt and flung him across the cell. As he landed, his leg hit the sink. Ms. Florich, who was on the next cell level, heard a thump. She looked at Mr. Sonntag's cell and saw Ms. Sanders helping Mr. Sonntag up. Mr. Sonntag had landed too far from his bunk to have fallen from his bunk.

5. After Ms. Sanders left the cell, Mr. Sonntag told Ms. Florich that Ms. Sanders had pulled him forcibly off his

   bunk and that he had hurt his leg. Ms. Florich called Sergeant Carter, who was a superior officer. Sergeant Carter went into Mr. Sonntag's cell and came out later, stating that Mr. Sonntag needed to be taken to the medical unit.

6. Mr. Sonntag told a male sergeant that Ms. Sanders had thrown him off the bunk. The male sergeant told Mr. Sonntag that if he made such an allegation that an investigation would be conducted and he would be placed in confinement while the investigation was being conducted. Because he feared being placed in confinement, Mr. Sonntag filled out an incident report, stating that he sustained his injuries by falling off his bunk. Mr. Sonntag was taken to the medical unit for

   treatment, and he also told medical personnel that he had fallen from his bunk.

7. In an effort to cover up her injury to Mr. Sonntag, on January 30, 2004, Ms. Sanders completed and signed a Report of Injury or Illness, which was submitted to Brevard, indicating that Mr. Sonntag fell off his bunk. The report was false.

8. On Sunday, February 1, 2004, Mr. Sonntag's mother came to visit him at Brevard. He told her that Ms. Sanders had thrown him off his bunk, causing the injury to his leg. Apparently, Mr. Sonntag's mother informed officials at Brevard of her son's allegations, because on Monday, February 2, 2004, Mr. Sonntag was asked by officials at Brevard to give another statement detailing the events that led to his injury.

9. Senior Prison Inspector Barry Glover was assigned to investigate Mr. Sonntag's allegations. As part of the investigation, Mr. Glover interviewed Ms. Florich, who did not actually see how Mr. Sonntag sustained his injuries. While the investigation was being conducted, Ms. Sanders approached

   Ms. Florich in an attempt to get their stories straight.

   
   

   Ms. Sanders tried to get Ms. Florich to tell the investigator that Mr. Sonntag had either fallen off the bed or jumped off the bed.

   CONCLUSIONS OF LAW

   
   

10. 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. (2005).

11. Petitioner has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983), the court developed a working definition of "clear and convincing evidence," which has been adopted by the Florida Supreme Court in In re Davey, 645 So. 2d 398 (Fla. 1994). The court in Slomowitz stated:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz, 429 at 800.

    
    

12. Petitioner has alleged that Ms. Sanders violated Subsections 943.1395(6) and 943.1395(7), Florida Statutes, which 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).

       
       

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    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 of 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.

       
       

13. Petitioner failed to establish that Ms. Sanders violated Subsection 943.1395(6), Florida Statutes. Petitioner did not establish that Ms. Sanders was not in compliance with Subsection 943.13(4), Florida Statutes. No evidence was presented to establish she had been convicted of, pled guilty to, or pled no contest to any felony or misdemeanor involving perjury or a false statement or that she had received a

    dishonorable discharge from the any of the Armed Forces of the United States. No evidence was presented that Ms. Sanders executed a false affidavit established in Subsections 943.13(8), 943.133(2), and 943.139(2), Florida Statutes.

14. Petitioner also alleged that Ms. Sanders violated Subsection 943.13(7), Florida Statutes, which provides that a correctional officer shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission." Additionally, Petitioner alleged that Ms. Sanders violated Florida Administrative Code Rules 11B-27.0011(4)(a) and 11B-27.0011(4)(b), which provide:

    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.

          
          

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       2. The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

    1. Section . . . 784.03 . . . F.S. . . .

    
    

15. Section 784.03, Florida Statutes, deals with the criminal offense of battery and defines battery as the touching

    or striking of another person against the will of the other or intentionally causing bodily harm to another person.

16. Petitioner has established by clear and convincing evidence that Ms. Sanders' actions in pulling Mr. Sonntag from his bunk constituted a battery. She touched Mr. Sonntag against his will. Petitioner also has established that Ms. Sanders falsified an official document with the intent to cover up her battery against Mr. Sonntag, which is a violation of

    Section 838.022, which makes it a third degree felony for "a public servant with corrupt intent to obtain a benefit for any person . . . to . . . [f]alsify any official record or document." Petitioner has established by clear and convincing evidence that Ms. Sanders failed to maintain good moral character as defined in Florida Administrative Code

    Rules 11B-27.0011(4)(a) and 11B-27.0011(4)(b) and is therefore in violation of Subsection 943.13(7), Florida Statutes, and subject to discipline pursuant to Subsection 943.1395(7), Florida Statutes.

17. Petitioner also alleged that Ms. Sanders violated Florida Administrative Code Rule 11B-20.0012(1)(f), which provides that an instructor's certificate may be revoked if "[t]he instructor commits an act or acts establishing a 'lack of good moral character,' defined in Florida Administrative Code Rule 11B-27.0011(4). No evidence was presented that Ms. Sanders

holds an instructor's license; thus, Petitioner has failed to establish that it has jurisdiction to discipline Ms. Sanders for a violation of Florida Administrative Code Rule 11B- 20.0012(1)(f).

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Lucinda Sanders did not violate Subsection 943.1395(6), Florida Statutes, or Florida Administrative Code Rule 11B-20.0012(1)(f); finding that Lucinda Sanders did violate Subsection 943.13(7), Florida Statutes; suspending her Correctional Officer Certificate for two years; placing her on probation for two years following the suspension of her certificate; and requiring her to complete such training courses as deemed appropriate by the Criminal Justice Standards and Training Commission.

DONE AND ENTERED this 27th day of April, 2006, 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 27th day of April, 2006.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes shall be to the 2003 version.

COPIES FURNISHED:

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

Lucinda J. Sanders

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

Tallahassee, Florida 32302

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida 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: 05-002334PL

Orders for Case No: 05-002334PL