06-002091PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Shawn C. Jones Status: Closed Recommended Order on Tuesday, October 17, 2006.

Summary: Respondent`s failed to maintain good moral character because of his indecent exposure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) C ase No. 06 - 2091 PL

)

SHAWN C. JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on August 17, 2006 , at 1:00 p.m., a

formal hearing was held in this case . 1/ The hearing location was

the V olusia County Courthouse, 101 North A labama Avenue, Deland,

Florida. Authority for co nducting the hearing is set forth in

Sections 120.569 and 120.57(1), Florida Statutes (2006) . The

hearing was conducted by Charles C. Adams, Administrative Law

Judge .

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Department of Law Enforc ement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Should the Criminal Justice Standards and Training

Commission (the Commission) impose discipline on Respondent in

associati on with his law enforcement certificate?

PRELIMINARY STATEMENT

B y an Administrative Complaint in Case No 22871, signed on

March 14, 2006, the Commission accused Respondent of the

following:

(a) On or about June 7, 2005, the Respondent, Shawn C.

Jones, did un lawfully commit a batter y upon Christine Dobmeier,

by actually touching or striking her intentionally causing

bodily harm to Christine Dobmeier against her will.

(b) On or between July 2004 and June 2005, the Respondent

Shawn C. Jones, did unlawfully a nd willfully, maliciously harass

another person, to wit: Christine Dobmeier and Tamra Marris, by

continuously exposing his genitals to them, which caused

substantial emotional distress in said person [sic] and served

no legitimate purpose.

(c) On or betw een July 2004 and June 2005, the Respondent,

Shawn C. Jones, d id unlawfully expose or exhibit his sexual

organs in a public place or in the private premises of another,

or so near thereto as to be seen from such private premises, in

a vulgar or indecent ma nner, or so to expose his person in such

place or go to be naked in such place.

By this conduct Respondent has been accused of violating

Sections 784.03, 784.048, and 800.03, F lorida Statutes, and any

lesser - included offenses , and Section 943.1395(6) and ( 7),

Florida Statutes, and Florida Administrative Code Rule 11B -

27.0011(4)(b), by failing to maintain qualifications established

in Section 943.13(7), Florida Statutes, related to the necessity

for a law enforcement officer in Florida to have good moral

cha racter.

The Commission provided Respondent a written opportunity to

elect his right s in addressing the Administrative Complaint

through a form it provided to him . Respondent cho se the option

to dispute the allegations of fact contained in the

Administrati ve Complaint and that by executing the form his

request be considered a petition for a formal hearing in

accordance with Section 120.57(1), Florida Statutes, to be held

before an Administrative Law Judge appointed by the Division of

Administrative Hearings (DOAH).

On June 14, 2006, DOAH received Petitioner's request for

assignment of an a dministrative l aw j udge to conduct the

hearing. A case file was opened and the case was assigned as

DOAH Case No. 06 - 2091PL to be heard by the undersigned. A

Notice of He aring was provided to the parties using the

addresses provided by Petitioner's counsel and Respondent

respectively. The address provided by the Respondent was as

reflected in his election of rights form and the certified mail

dispatch postal service form bearing his signature . The hearing

notice sent to Respondent was not returned as undelivered.

Although Respondent did not attend the hearing, he did provide a

written statement to the effect that he would not be attending.

That statement was filed with DOAH on August 16, 2006, at 11:10

a.m. Upon the return from the hearing, the undersigned was made

aware of the contents of the written statement by Respondent.

It was addressed in a N otice of E x - P arte C ommunication as an

attachment , in accordance with Se ction 120.66(1)(b), Florida

Statutes (2006). Under the circumstances , as reflected in the

o rder pertaining to the N otice of Ex - P arte C ommunication , the

contents within the correspondence received from the Respondent

have not been considered in preparing t his Recommended Order.

To the extent that the correspondence attempts to explain

Respondent's position in this case concerning disputes of

material fact, it does not comport with the process identified

in Section 120.57(1) (a) and (b), Florida Statutes (20 06) ,

concerning the hearing itself and Respondent ' s opportunity to

participate. I t is acknowledged that through the correspondence

Respondent indicated that " . . . I would like to keep my

certification . . .," taken to refer to his law enforcement

certif ication. That being so, the evi dence that was presented

by Petitioner at the formal hearing addresses the continuing

opposition by the Respondent to discipline and the value of

proceeding with the case in his absence .

At hearing Petitioner presented Capt ain Tamra Ma rr is and

Christine Dobmeier as its witnesses. Petitioner's E xhibits

numbered one through three were admitted.

On September 11, 2006, a hearing Transcript was filed. On

September 20, 2006, Petitioner's Proposed Recommended Order was

filed. T he Proposed Recommended Order has been considered in

preparing the Recommended Order.

FINDINGS OF FACT

1. The Commission has the power to certify and revoke the

certification of law enforcement officers. § 94 3 .12(3), Fla.

Stat. (2006).

2. Respondent i s a certified law enforcement officer. At

times relevant to the inquiry he served in that capacity in New

Smyrna Beach, Florida . Based upon the record, it is inferred

that his employment was in association with what has been

identified as the Volusia Cou nty Beach Patrol (Beach Patrol).

That organization was constituted of law enforcement officers

and other employees, to include an ocean rescue life guard and

EMT. The latter employment position was referred to in the

organization as a Beach Safety Specia list.

3. The accusations against Respondent in this case involve

conduct seen by and directed to two females, Captain Tam a ra

Marris , a law enforcement officer and Beach Patrol S pecialist

Christine Dobmeier. Both worked for the Beach Patrol at times

rel evant to the inquiry.

4. The incidents that form the basis for this complaint

took place in a building (the station) utilized by the Beach

Patrol.

5. The basic design of the building is set out in

Petitioner's E xhibit number ed o ne , admitted. The d rawing or

diagram is not to scale. It does reflect the location of a

locker room, the door to that locker room , a bathroom and an

office in the building. It also shows the location of

Respondent's locker within the locker room. The door into the

locker room is kept shut. It has a combination lock on it that

must be unlocked to gain access to the locker room.

6. In the summer 2004, Respondent and Captain Marris

finished their duty shift at the beach and returned to the

stat i o n. They were the only emp loyees in the station at the

time. Respondent was in the locker room , which was not intended

to be a dressing room. The bathroom is the place where people

change their clothes from the duty clothing into other attire.

Respondent was facing his locker we aring only a towel when

Captain Marris entered the locker room. W hile in the locker

room Respondent's genitals were exposed to her view.

7 . On this first occasion Captain Marris thought that the

exposure was just an accident.

8 . On a second occasion w hen the two officers, Captain

Marris and Respondent were closing the shift, Captain Marris

walked into the locker room and Respondent dropped the towel he

was wearing exposing himself , that is exposing his genitals.

The second incident took place in appro ximately August 2004.

9 . There was a third incident a t the station between

Respondent and Captain Marris. This time before Captain Marris

entered the locker room , she said some words to the effect ,

" H ey, are you decent , " to which Respondent replied , " Y ea h , come

on in." When she entered the room, Respondent dropped his towel

to pull up his shorts and she saw his genitals again. In her

mind , with the third incident having transpired, she concluded

that Respondent's actions were deliberate. As a conseq uence

beyond that point , when Captain Marris needed to put her work

gear away in the locker room , she would wait until Respondent

left the station.

10 . On the third occasion which occurred sometime around

September 2004, Respondent and Captain Marris w ere alone as they

had been on the prior two occasions.

11 . When Captain Marris determined in her mind that the

Respondent was acting intentionally in exposing his genitals ,

she considered this to be vulgar or indecent. She did not

believe that anything in the conduct was legitimate . C ertainly

by the third occasion , if not before, Resp ondent's conduct could

be seen as intentional and without legitimate purpose.

1 2 . Christine Dobmei er was subject to Respondent's

inappropriate conduct. She was a full - time ocean life guard and

EMT in the position Beach Safety Specialist . She had similar

experiences with Respondent to those between Respondent and

Captain Marris. As Ms. Dobmeier recalls, ordinarily the male

personnel would wear "life guard baggies " a t w ork. At time s the

male employees would wrap a towel around the life guard baggies.

This reference is understood to mean some form of pants or

sho rts worn by the male personnel which they would cover with a

towel . In July or August 2004 around closing ti me, Ms. Dobmeier

entered the locker room where Respondent was located. He was

wearing a towel when she entered the room . At that moment his

towel fell exposing his genitals. She stated , "I am so sorry"

and walked out. On that occasion the door to the l ocker room

had been open when she entered.

13 . A couple of weeks later Ms. Dobmeier entered the

locker room . T his time the locker room door h a d been closed.

She did not bother to knock because most people in her

experience would change their clothes in the bathroom. She

pushed the lock mechanism which made a loud noise. She entered

the room and saw Respo ndent , who was wearing only a T - shirt.

Re spondent was facing his locker. W hen Ms. Dobmeier entered the

room he turned towar d her, exposing his genit als. Ms. Dobmeier

apologized for seeing Respondent in his undressed state and

immediately left the room.

1 4 . There was a third incident involving Respondent and

Ms. Dobmeier , a few weeks after the second incident. This time

Ms. Dobmeier knocked on the locker room door and Respondent told

her to enter the room. When she did he was standing naked and

she walked right back out. Later , Ms. Dobmeier asked Respondent

about the third incident and said , " W hy did you tell me to come

in , " and Respondent in repl y , as Ms. Dobmeier explains , " J ust

kind of laughed." After the third incident Ms. Dobmeier felt

that the Respondent intended the conduct in exposing himself.

1 5 . There was a fourth incident in the locker room. This

time Ms. Dobmeier knocked on the lock er room door and did not

hear anything in response. She activated the locking mechanism

and Respondent was found in the room with his penis erect facing

her. He asked Ms. Dobmeier whether he, as Ms. Dobmeier states,

indicat ing Respondent , "W as as large a s my boyfriend . " T his is

understood to mean a comparison between Respondent and

Ms. Dobmeier's boyfriend as to their genitals. No other persons

were in the station when this encounter took place.

Ms. Dobmeier considered the Respondent's exposure of his

genitals as vulgar.

1 6 . As a result of the last encounter Ms. Dobmeier decided

not to enter the locker room while Respondent was at the

station.

17 . At the beginning of 2 005 there was another incident.

T his time Respondent grabbed Ms. Dobmeier's breas t after a swim

drill. The incident took place in the locker room with the door

open and 10 to 12 lifeguards in the main area outside of the

r oo m. O nly Respondent and Ms. Dobmeier were in the locker room

when he performed this act. His action was not inv ited or

acquiesced to . Ms. Dobmeier responded by telling Respondent ,

" D on't ever touch me again" and walked away.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case pursua nt to Sections 120.569 and 120.57(1), Florida

Statutes (2006).

19 . By this action, the Commission seeks to discipline

Respondent concerning his law enforcement certificate.

Peti tioner bears the burden of provi n g the allegations in the

Administrative Com plaint before discipline can be imposed

against Respondent's certificate. The nature of that proof must

be by clear and convincing evidence. Department of Banking and

Finance Division of Secur i ties and Investor Pro tection v.

Osborne Stern and Co. , 670 So . 2d 932 (Fla. 1996); and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

20 . The meaning of clear and convincing evidence is

explained in the case In Re: Davey 645 So. 2d 398 (Fla. 1994),

quoting with approval from Slomowitz v. Walker , 429 So. 2d 79 7

(Fla. 4th DCA 1983).

21 . Again , the factual allegation s in the case state the

following:

(a) On or about June 7, 2005, the

Respondent, Shawn C. Jones, did un lawfully

commit a batter y upon Christine Dobmeier, by

actually touching or striking her

intent ionally causing bodily harm to

Christine Dobmeier against her will.

(b) On or between July 2004 and June 2005,

the Respondent Shawn C. Jones, did

unlawfully and willfully, maliciously harass

another person, to wit: Christine Dobmeier

and Tamra Marris, b y continuously exposing

his genitals to them, which caused

substantial emotional distress in said

person and served no legitimate purpose.

(c) On or between July 2004 and June 2005,

the Respondent, Shawn C. Jones, did

unlawfully expose or exhibit his sex ual

organs in a public place or in the private

premises of another, or so near thereto as

to be seen from such private premises, in a

vulgar or indecent manner, or so to expose

his person in such place or go to be naked

in such place.

22 . Among the ground s for discipline referred to in the

Administrative Compliant is a reference to Section 943 .1395(6),

Florida Statutes (2004 ), which states in pertinent part:

(6) 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).

23 . Section 9 43.13(4), Florida Statutes (2004 ), addresses

a certificate holder who has been convicted of a felony or

misdemeanor involving perjury or false statement or who has

received a dishonorable discharge from one of the armed forces

of the United States , as well as the intentional execution of

false affidavits described at Section 943.13(5) and (6), Florida

Statu tes (2004 ). The facts in this case do not concern

themselves with perjury or provi ding a false oath or statement.

T herefore Respondent did not violate Section 943.1395(6),

Florida Statutes (200 4 ) .

24 . In the alternative , Respondent is being prosecuted

p ursuant to Section 943.1395(7), Florida Statutes (2004), which

states:

(7) Upon a finding by the commission that a

certified officer has not ma intained good

moral character, the definition of which has

been adopted by rule and is established as a

statewid e standard, as required by s.

943.13(7), the commission may enter an order

imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on a probati onary 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 subse ction.

(d) Successful completion by the officer of

any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

2 5 . Section 943.13(7), Florida Statutes (2004), which

forms the basis for establishing a statewide standard by rule

adoption for the maintenance of good moral character , states in

referring to the Respondent's obligation as a certificate holder

that he should "have a good moral character as determined by a

b ackground investigation under procedures established by the

Commission."

2 6 . The rule to implement the basis for discipline for a

certified of ficer, such as Respondent, who ha s not maintained

good moral character is found at Florida Administrative Code

Ru le 11B - 27.0011 ( 4 ) (b), which states:

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 ch aracter required by

Section 943.13(7), F.S., is defined as . . .

(b) 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. Sections . . . 784.03, . . . 784.048

. . . and 800.03 . . .

The statutes incorporated in the rule that ha ve been referenced

are those found in the legal allegations set forth in the

Administrative Complaint.

2 7 . Section 784.03, Florida Statutes (2004), states in

pertinent p art:

784.03: Battery . . .

(1)(a) The offense of battery occurs when a

person:

1. Actually and intentionally touches . . .

another person against the will of the

other ;

* * *

(b) Except as provided in subsection (2), a

person who commits batter y c ommits a

misdemeanor of the first degree, punishable

as provided in s. 775.082 or s. 775.083.

28 . Section 784.048 , Florida Statutes (2004) , in pertinent

part states:

784.048: Stalking; definitions; penalties.

(1) As used in this section, the term:

( a) "Harass" means to engage in a course of

conduct directed at a specific person that

causes substantial emotional distress in

such person and serves no legitimate

purpose.

(b) "Course of conduct" means a pattern of

conduct composed of a series of acts over a

period of time, however short, evidencing a

continuity of purpose. Constitutionally

protected activity is not included within

the meaning of "course of conduct." Such

constitutionally protected activity includes

picketing or other organized protes ts.

* * *

(2) Any person who willfully, maliciously,

and repeatedly . . . harasses . . . another

person commits the offense of stalking, a

misdemeanor of the first degree, punishable

as provided in s. 775.082 or s. 775.083.

* * *

29 . Section 800.03, Florida Statutes (2004), states:

Exposure of sexual organs. - It is unlawful

to expose or exhibit one's sexual organs in

public or on the private premises of

another, or so near thereto as to be seen

from such private premises, in a vulgar or

indecent mann er, or to be naked in public

except in any place provided or set apart

for that purpose. Violation of this section

is a misdemeanor of the first degree,

punishable as provided in s. 775.082 or s.

775.083. . . .

30 . The Administrative Complaint did not a llege and no

proof was offered to show that Respondent had been criminally

prosecuted for the misdemeanors set out in this discussion.

Clear and convincing evidence was presented to show that

Respondent violated those provisions as to elements of proof

re lated to the statutory language . Respondent committed battery

against Ms. Dobmeier when he grabbed her breast as defined in

Section 784.03, Florida Statutes (2004). Respondent exposed his

genitals to Captain Marris and Ms. Dobmeier ; h e was naked in

their presence, and h e acted in a vulgar and indecent manner in

their presence when exposing himself. All these acts were done

in public in a setting that was not designed or set apart for

the purpose of being naked. The exposure of his sexual organs

met the definition found within 800.03, Florida Statutes (2004).

The continuing confrontation by Respondent in exposing his

sexual organs to Captain Marris and Ms. Dobmeier meets the

definition of stalking set out in Section 784.048, Florida

Statutes (2004), when describing a misde meanor, as opposed to a

felony. C onsistent with Florida Administrative Code Rule 11B -

270011(4)(b), clear and convincing evidence has been shown that

Respondent perpetrated acts that would constitute misdemeanors

in relation to Sections 784.03, 784.048, and 800.03, Florida

Statutes (2004) , thereby failing to maintain good moral

character.

31 . Florida Administrative Code Rule 11B - 27.005(5)(b) ,

w hen equating conduct which would constitute a misdemeanor

offense pertaining to Section 784. 03, Florida Statutes (2004),

establishes the recommended penalty range a s suspension.

When considering Section 800.03, Florida Statu t es (2004) , the

penalty range is suspension, and probation with counseling, to

revocation. The rule makes n o mention of Section 784.048,

Florida Statutes (2004). U nder Florida Administrative Code Rule

11B - 27. 005(6) , additional criteria address aggravating

circumstances and mitigating circumstances in imposing

punishment . The aggravating circumstances are that there were

numerous violations, the exposure of genitals by the repetitious

nature of the conduct made it severe, and the battery on another

person was a severe act. None of the mitigating circumstances

addressed in the rule were presented.

RECOMMENDATION

Upon cons ideration of the facts found and the conclusions

of law reached, it is

RECOMMENDED:

That a final order be entered finding violations of the

statutes and rule referred to and revoking Respondent's law

enforcement certificate.

DONE AND ENTERED this 17th day of October , 2006 , in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

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 17th day of October , 200 6.

ENDNOTE

1/ Ori ginally the case was scheduled to be heard at 10:00 a.m.

on August 17, 2006. The hearing commenced at a later time for

reasons explained in the hearing transcript.

COPIES FURNISHED

:

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

Tallahassee, Florida 32302

Shawn C. Jones

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services Department of L aw Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

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 exception s 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.