09-003938PL Criminal Justice Standards And Training Commission vs. Stephen L. Demeter Status: Closed Recommended Order on Thursday, December 3, 2009.

Summary: Petitioner proved that Respondent's exposure of sex organs on private premises, with public access, viewed by one who did not consent, shows lack of good moral character; Recommend revocation of Respondent's certificate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 09-3938PL

)

STEPHEN L. DEMETER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to proper notice, this cause came on for formal

proceeding and hearing before P. Michael Ruff, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings in Shalimar, Florida, on September 18, 2009. The

appearances were as follows:

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Gene Mitchell, Esquire

2101 North 9th Street

Pensacola, Florida 32502

STATEMENT OF THE ISSUES

The issues to be determined in this proceeding concern whether the Respondent committed the violations of Sections 943.13(7), 943.1395(7), and 800.03, Florida Statutes, and

Florida Administrative Code Rule 11B-27.0011(4)b, concerning the

licensure qualification of good moral character.

PRELIMINARY STATEMENT

This case arose when the Petitioner agency filed an

Administrative Complaint on May 13, 2009, alleging that the

Respondent had unlawfully exposed his sexual organs in a public

place or on the private premises of another, in a vulgar or

indecent manner, in purported violation of the above-cited legal

authority. The Respondent chose to contest the charges and

timely sought a formal proceeding to dispute the factual and

legal issues thus advanced.

The case was transmitted to the Division of Administrative

Hearings on or about July 22, 2009 and, by transfer, ultimately

assigned to the above-named Administrative Law Judge. The

matter was scheduled for hearing on September 18, 2009, in

Shalimar, Florida.

The case came on for hearing as noticed. The Petitioner

presented the testimony of four witnesses and had one exhibit

admitted into evidence. The Respondent presented two witnesses,

including the Respondent. The Respondent also offered one

exhibit, which was a report of the results of a polygraph test

taken by the Respondent. That exhibit was not admitted into

evidence, based on the authority referenced in the Conclusions

of Law below. The exhibit was proffered. Additionally, by

agreement of counsel, official recognition was taken of a “No

Prosecution” or Nolle Prosequi , filed by the State Attorney for

the First Judicial Circuit, concerning the same charged conduct,

based upon the State’s conclusion that there was insufficient

evidence to prove the charges related to these facts beyond a

reasonable doubt.

Upon conclusion of the hearing, a transcript of the

testimony was ordered by the Petitioner. The transcript was

filed on September 29, 2009. The Petitioner filed a Proposed

Recommended Order and the Respondent a "Proposed Order," on or

before October 14, 2009. The post-hearing submittals have been

considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida,

charged, as pertinent, with licensure and regulation of the

practice standards and practice of certified law enforcement

officers, in the manner prescribed by Chapter 943, Florida

Statutes. The Respondent was certified as a Law Enforcement

Officer on May 8, 1995, and issued Certification Number 155216.

The Respondent was a Fire Chief in Gulf Breeze, Florida, at

times pertinent to this proceeding.

2. On June 21, 2008, the Respondent went to the Edge of

Paradise Day Spa (the Spa) as a customer seeking a massage. He

arrived at about 5:45 p.m. The Spa is owned by Ms. Vickie Edge.

She holds a Massage Establishment License and a Facial

Specialist License issued by the State of Florida. The business

is located in Destin, Florida, on Highway 98. It offers its

customers massage therapy and various beauty treatments. It

employed Jennifer Edwards, a state-licensed massage therapist,

on June 21, 2008.

3. Because he did not have an appointment, the Respondent

had to wait until the massage therapist, Ms. Edwards, returned

from a meal break. During this time he conversed with the

owner, Ms. Edge, while he completed a "new customer form."

4. The Respondent is a public servant and did not want his

identity associated with patronizing a massage establishment.

Ms. Edge assured him that customers often did not use their true

identities, in completing the form, for this reason. The

Respondent therefore entered a fictitious name, "Jim Martin" on

the form, also stating that he was from Ohio. He told Ms. Edge

that he was a guest at a nearby Days Inn motel and was in the

area on business, working on a “Networking” job for a Pensacola

bank.

5. The customer form contained a notice to the effect that

removal of all clothing was not required, that body parts not

being massaged would be covered by a large sheet or towel, and

that “. . . no reputable massage therapist will ever touch you

in a sexual way.” The Respondent signed the form, with the

fictitious name and phone number, and paid Ms. Edge a cash fee

of $75.00 for a 60-minute massage.

6. The massage therapist, Ms. Edwards, returned to the spa

at about 6:10 p.m., accompanied by her friend, Karen Arrington.

She met the Respondent (for the first time) and then went to the

massage room to prepare for the Respondent’s massage. About

five minutes later she showed the Respondent to the massage

room. She told him to undress and lie face down on the massage

table under a twin-size bed sheet. She told him to thus cover

his "private areas" and to tuck the sheet under his hips.

7. The Respondent agreed and, while Ms. Edwards was out of

the room, he disrobed. After several minutes, Ms. Edwards

knocked on the door and re-entered the room, finding the

Respondent lying face down under the bed sheet. He was nude,

except for the sheet covering him.

8. Ms. Edwards pulled the sheet down to his lower back and

began massaging his lower back, keeping his buttocks covered by

the sheet. During this process the Respondent pulled the sheet

down, exposing his buttocks. Ms. Edwards replaced the sheet,

admonishing him to keep that area covered.

9. Upon finishing with his back, Ms. Edwards told the

Respondent to roll over and lie on his back while she continued

with the massage. He was covered from the top of his back

downward while this change of position was made.

10. Ms. Edwards then continued with the massage. While thus

lying on his back, the Respondent pulled the sheet down, exposing

his erect penis to Ms. Edwards while she was about three feet

away. She testified that she had never before seen a man’s penis

like that, in that there was ". . . excess skin over the top of

his penis." The Respondent acknowledged in testimony that he is

uncircumcised.

11. While thus exposed, the Respondent began to apparently

masturbate, using his hand. Ms. Edwards was about three feet

away at the time. She did not consent to this conduct and was

very upset by such an act in front of her.

12. Ms. Edwards ran out of the room and to the lobby area

and told Ms. Edge that the Respondent was "back there jerking

off.” She also told Ms. Arrington, and told her to call the

police. The Respondent then dressed and came into the lobby.

Ms. Edwards yelled at him that the spa was a respectable

establishment and that the police were being called.

13. Ms. Edwards tried to block his exit, but the Respondent

fled the building at this point. Ms. Edwards followed him.

Ms. Arrington was already outside speaking with the “911”

operator on her cell phone. Ms. Arrington grabbed the Respondent

by the shirt and confronted him, at which point he pushed her to

the ground and fled on foot down the sidewalk along Highway 98.

He left his car in the spa parking lot.

14. Ms. Edwards and Ms. Arrington followed the Respondent,

calling to him to stop and that the police were on their way.

Ms. Arrington stopped and picked up a beer bottle and broke it,

carrying it with her to use as a weapon. She testified that she

feared the Respondent might do her violence if she confronted

him.

15. The chase continued for more than one-half mile. A

deputy sheriff arrived and Ms. Arrington pointed out the

Respondent. The deputy took him into custody. On his own

volition, the Respondent told the deputy that he had scratched

himself during a massage and the masseuse had gone “ballistic.”

The Respondent stated that he had done nothing wrong. When the

officer asked him why he fled, he replied that one of the women

was throwing bottles at him. Both Ms. Edwards and Ms. Arrington

wrote witness statements for the deputy.

16. In testimony, Ms. Edwards described the Respondent’s

act verbally and with an illustrative hand motion. She did not

describe the duration of the act, as she observed it. The

Respondent maintained that he was doing no such act, but rather

was scratching himself because the sheet caused him to itch.

17. The Respondent used false identification information

when he went to the spa because he is a public servant (fire

chief) and did not want adverse publicity associated with his

paying for a massage during a time when employees were subject to

lay-offs due to shrinking budgets. He did not flee in his car

because he did not want his identity to become known through

means of his tag number.

CONCLUSIONS OF LAW

18. The Division of Administrative hearings has

jurisdiction of the parties to and the subject matter of this

proceeding. §§ 120.57 and 120.569, Fla. Stat. (2009).

19. Section 943.13, Florida Statutes (2007), provides for

the minimum qualifications for certification of law enforcement

officers. Subsection (7) provides: "Have a good moral character

as determined by a background investigation under procedures

established by the Commission."

20. Section 943.1395(7), Florida Statutes (2007),

authorizes the Commission to specify by rule the definition of

"good moral character" for purposes of licensure prosecutions of

certified officers for violating the "good moral character"

clause contained in Section 943.13(7), Florida Statutes.

Subsections 943.1395(6) and (7), Florida Statutes, provide that:

(6) The commission shall revoke the

certification of any officer who is not in

compliance with the provisions of §

943.13(4) or who intentionally executes a

false affidavit established in § 943.13(8),

§ 943.133(2), or § 943.139(2).

(a) The commission shall cause to be

investigated any ground for revocation from

the employing agency pursuant to § 943.139

or from the Governor, and the commission may

investigate verifiable complaints. Any

investigation initiated by the commission

pursuant to this section must be completed

within 6 months after receipt of the

completed report of the disciplinary or

internal affairs investigation from

employing agency or Governor's office. A

verifiable complaint shall be completed

within 1 year after receipt of the

complaint. An investigation shall be

considered completed upon a finding by a

probable cause panel of the commission.

These time periods shall be tolled during

the period of any criminal prosecution of

the officer.

* * *

(7) 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 §

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 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.

(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.

21. Florida Administrative Code Rule 11B-27.0011(4)

provides a definition of "good moral character" for purposes of

disciplinary action for Florida officers. The rule states in

pertinent part:

(4) 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),

Fla. Stat., a certified officer's failure to

maintain good moral character required in

Section 943.13(7), Fla. Stat., is defined

as:

(d) The perpetration by an officer of an

act that would constitute any of the following

misdemeanor or critical offenses whether

criminally prosecuted or not. . . 800.03 . . .

22. Section 800.03, Florida Statutes, provides in relevant

part:

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 manner, 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. . . .

23. Additionally, the case of Zemour, Inc. v. Division of

Beverage , 347 So. 2d 1102 (Fla. 1st DCA 1977), is instructive as

to the applicability of the standard or concept of moral

character to the conduct of one who serves in a position of

public trust. The facts were quite different (denial of a

beverage license based on an adverse finding regarding moral

character) but the court’s definition is noteworthy:

Moral character as used in this statute,

means not only the ability to distinguish

between right and wrong, but the character

to observe the difference; the observance of

the rules of right conduct, and conduct

which indicates and establishes the

qualities generally acceptable to the

populace for positions of trust and

confidence.

24. The clear and convincing evidence, culminating in the

above findings of fact, shows that, in the manner found above,

the Respondent displayed his erect penis on the private premises

of the spa and intentionally masturbated, or at least engaged in

similar hand motions or manipulations. Ms. Edwards did not

consent to this act or to witnessing this act. She was upset by

witnessing it. The Respondent’s act was vulgar and indecent.

The Respondent’s claim that he was merely scratching an itch is

irreconcilable with Ms. Edward’s description of his conduct.

Her testimony, coupled with her demonstration of his hand motion

is unmistakable. She described his penis as "having excess skin

over the top" and the Respondent admitted that he is not

circumcised. There is no evidence that Ms. Edwards had any

motive to fabricate her description of the events which occurred

in the massage room. Indeed, the subject occasion was the first

time she had ever met the Respondent.

25. Ms. Edward’s testimony concerning these events is

corroborated to some extent by Ms. Edge and Ms. Arrington, who

described Ms. Edward’s highly emotional state as she left the

massage room from her interrupted session with the Respondent.

She was visibly upset when she described to the women the

Respondent’s conduct.

26. The Respondent’s conduct before and after the incident

during the massage corroborates Ms. Edwards to some extent. He

made efforts to conceal his identity. When he was told that the

police were being summoned, he pushed his way out of the door of

the spa and fled on foot. His car was in the parking lot, but

he chose not to use it for fear that he could be identified to

the police through his tag number. This behavior is consistent

with that of a man who is conscious of his guilt and fears

arrest.

27. The Respondent offered the results of a polygraph test

the Respondent took into evidence. The judge rejected the test

results, and any evidence that the Respondent took such a test,

as inadmissible. Polygraph test results are inadmissible in

proceedings such as this, unless the parties stipulate their

admissibility. Metro Dade County v. Bannister , 683 So. 2d 130

(Fla. 3d DCA 1996); Maddox v. Dept. of Professional Regulation ,

592 So. 2d 717 (Fla. 1st DCA 1991) rev . den ., 601 So. 2d 552

(Fla. 1992); Lieberman v. Dept. of Professional Regulation, Bd.

Of Medicine , 573 So. 2d 349 (Fla. 5th DCA 1991); Carter v.

State , 474 So. 2d 397, 398 (Fla. 3d DCA 1985). See also ,

Ehrhardt , Florida Evidence, § 401.5.

28. The clear and convincing evidence establishes that the

Respondent committed the conduct described in the above Findings

of Fact. Pursuant to the referenced case law and rules, the

facts show a failure to maintain good moral character. The

described exposure of the sexual organs is unlawful and, under

the cited rule definition (and the above-quoted court’s

definition), the Respondent has violated the referenced good

moral character standard. Fla. Admin. Code R. 11B-

27.0011(4)(b).

29. The guideline for penalties range from probation to

suspension, with counseling, up to, and including revocation.

The facts show substantially egregious conduct. The Respondent

not only exposed his sexual organs in a private location, open

to the public, in the presence of an unwilling witness, he also

at least attempted to masturbate in her presence. A

certificated officer who behaves in such a vulgar and depraved

manner should be disciplined in proportion to the gravity of the

violation. See Criminal Justice Standards and Training

Commission v. Eric C. Denoun , Case No. 98-4705 (DOAH May 27,

1999) (officer who stood naked in his neighbor’s back yard

failed to maintain good moral character and certificate should

be revoked); Criminal Justice Standards and Training Commission

v. Raymond C. Riddles , Case No. 86-4735 (DOAH May 13, 1987)

(officer who exposed and stroked his semi-erect penis at a

wayside park should have his certification revoked.) See also

Criminal Justice Standards and Training Commission v. Shawn C.

Jones , Case No. 06-2091PL (DOAH October 17, 2006).

30. The Respondent’s conduct, as described in the above

findings, is inconsistent with the minimum standard of conduct

and moral character demanded of one who, as a certificated law

enforcement officer, occupies a position of great public trust.

There is a basic public expectation that officers serving the

public trust, by enforcing the laws, must themselves obey the

law. City of Palm Bay v. Bauman , 475 So. 2d 1322 (Fla. 5th DCA

1989).

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the record evidence and the pleadings and

arguments of the parties, it is

Recommended that a Final Order be entered by the Criminal

Justice Standards and Training Commission, revoking the

Respondent’s Law Enforcement Certification, Number 155216.

DONE AND ENTERED this 3rd day of December, 2009, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of December, 2009.

COPIES FURNISHED :

Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Gene Mitchell, Esquire

2101 North 9th Street

Pensacola, Florida 32502

Michael Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Gerald M. Bailey, Commissioner

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.