STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

KARIN L. STANSBERRY, )

)

Respondent. )

Case No. 07-0466PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on May 25, 2007, in Panama City, 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: Cecile M. Scoon, Esquire

Peters & Scoon

25 East Eighth Street Panama City, Florida 32401

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2005),1 and Florida

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

PRELIMINARY STATEMENT

On December 5, 2006, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission (Department) issued an Administrative Complaint against Respondent, Karin L. Stansberry (Ms. Stansberry), alleging that she violated Sections 943.1395, 943.1395, and Subsection 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a). Ms. Stansberry requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on January 26, 2007. The case was originally assigned to Administrative Law Judge Charles C. Adams, but was transferred to Administrative Law Judge Susan B. Harrell to conduct the final hearing.

The parties filed a Pre-Hearing Stipulation in which they agreed to certain facts. To the extent relevant, those stipulated facts are incorporated into this Recommended Order.

At the final hearing, the Department called Virginia Sawyer and Aaron Deal as its witnesses. Petitioner's Exhibits 1 through 3 were admitted in evidence. Petitioner's Exhibit 4 was rejected. Ms. Stansberry testified in her own behalf.

Respondent's Exhibits 1 through 3, and 7 through 9 were admitted at the final hearing. Respondent's Exhibits 5 and 6 were

proffered. Respondent was given leave to file, as late-filed exhibits, a compact disc of an unemployment appeals hearing and handwritten notes, case diary, and work record of Chris Hubbard. The late-filed exhibits were filed on June 5 and 6, 2007, respectively. Counsel for Respondent represented that Petitioner had no objection to the filing of the late-filed exhibits. The late-filed compact disc is accepted as Respondent's Exhibit 10, and the hand written notes are accepted as Respondent's Exhibit 11. Counsel for Respondent retained Respondent's Exhibits 4, 6, 8, and 9 at the close of the final

hearing to make copies. Respondent's Exhibits 4, 6, 8, and 9 were returned to the undersigned on September 5, 2007.

The two-volume Transcript was filed on June 15, 2007. At the final hearing, the parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. On June 21, 2007, Respondent filed a Consented Motion for Enlargement of Time to File Recommended Order, which was granted by order, dated June 22, 2007, extending the time for filing proposed recommended orders to July 9, 2007.

Petitioner filed its Proposed Recommended Order on July 9, 2007, and Respondent filed her Proposed Recommended Order on July 10, 2007. The parties' Proposed Recommended Orders have been given consideration in the rendering of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding,

   
   

   Ms. Stansberry was a certified Florida Correctional Officer, having been issued certificate number 182262, and she was employed by the Corrections Corporation of America at its Bay Correctional Facility as a corrections officer.

2. Sometime during the fall of 2005, Ms. Stansberry, and two co-workers, Virginia Sawyer (Ms. Sawyer) and Aaron Deal (Mr. Deal) were leaving the Bay Correctional Facility around 11:00 p.m. at the end of their shift. As they entered the parking lot of the facility, a discussion occurred concerning pain medication, and Lortab in particular. Ms. Stansberry stated that she had some Lortab in her car. Mr. Deal and

   Ms. Stansberry went to Ms. Stansberry's car, where Mr. Deal gave Ms. Stansberry $20. In exchange for the $20, Ms. Stansberry gave Mr. Deal four Lortab tablets that she got from a prescription medication bottle. Lortab, which contains hydrocodone, is a controlled substance.

3. Ms. Sawyer witnessed Mr. Deal give Ms. Stansberry the

   
   

   $20 and Ms. Stansberry holding the prescription bottle. Mr. Deal readily admitted that he bought the Lortab from Ms. Stansberry.

4. In December 2005, Ms. Sawyer and Ms. Stansberry gave depositions in a discrimination case involving employees at the

   Bay Correctional Facility. Apparently, Ms. Stansberry's testimony was not favorable to Daniel Kelloway, who was a chief at the Bay Correctional Facility. Soon after the depositions were taken, Daniel Kelloway told Ms. Sawyer that Ms. Stansberry had said that Ms. Sawyer had lied during her deposition. During this conversation, Ms. Sawyer told Chief Kelloway about the drug transaction that had occurred a few weeks earlier between

   Ms. Stansberry and Mr. Deal.

   
   

5. Chief Kelloway interrogated Mr. Deal about Ms. Sawyer's allegations, and Mr. Deal admitted that he had bought four Lortab tablets from Ms. Stansberry for $20. Mr. Deal was placed on administrative leave while the incident was being investigated and was later terminated for his part in the drug transaction.

6. Ms. Stansberry denied selling the drugs to Mr. Deal and claims that the charges were fabricated in retaliation for her giving a deposition that was not favorable to Chief Kelloway. She takes the position that Mr. Deal was pressured into saying that the drug transaction took place. Ms. Stansberry's testimony is not credible. Mr. Deal was fired because of his part in the drug transaction, and credibly testified at the final hearing that Ms. Stansberry sold him the Lortab tablets.

   CONCLUSIONS OF LAW

   
   

7. 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. (2006).

8. The Department 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 Company, 670 So. 2d 932 (Fla. 1996). The Department has alleged that Ms. Stansberry violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011.

9. Subsections 943.1395(6) and (7), Florida Statutes,

   
   

   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 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.

   
   

10. Subsection 943.13(7), Florida Statutes, provides:

    
    

    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 Department of Management Services shall:

    
    

    * * *

    
    

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

11. Florida Administrative Code Rule 11B-27.0011 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.

    
    

12. The Department has failed to establish that Ms. Stansberry violated Subsection 943.1395(6), Florida

    Statutes. Nor were there any allegations of fact set forth in the Administrative Complaint relating to a violation of Subsection 943.1395(6), Florida Statutes.

13. The Department has established by clear and convincing evidence that Ms. Stansberry sold Mr. Deal four Lortab tablets in the parking lot of the Bay Correctional Facility.

14. Subsection 893.13(1)(a), Florida Statutes, provides that the selling of a controlled substance such as Lortab is a second degree felony. Ms. Stansberry committed a felony when she sold the Lortab to Mr. Deal. Florida Administrative Code Rule 11B-27.0011 provides that such an act constitutes failure to maintain good moral conduct as required by Subsection 943.13(7), Florida Statutes, and subjects an officer to discipline pursuant to Subsection 943.1395(7), Florida Statutes. Thus, the Department has established by clear and convincing evidence that Ms. Stansberry has violated Subsection 943.13(7), Florida Statutes.

15. Florida Administrative Code Rule 11B-27.0011(5)(a)4 provides that discipline for possession or sale of a controlled substance is revocation.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Karin Stansberry did not violate Subsection 893.1395(6), Florida Statutes; finding that Karin Stansberry did violate Subsection 943.13(7), Florida Statutes, by failing to maintain good moral character as defined in Rule 11B-27.0011(4)(a), Florida Administrative Code; and pursuant to Subsection 943.1395(7), Florida Statutes, revoking her certification.

DONE AND ENTERED this 7th day of September, 2007, 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 September, 2007.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2005), unless otherwise indicated.

COPIES FURNISHED:

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

Cecile M. Scoon, Esquire Peters & Scoon

25 East Eighth Street Panama City, Florida 32401

Michael Crews, Program Director Division of Criminal Justice

Professional Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel 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: 07-000466PL

Orders for Case No: 07-000466PL