STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

ANTONIO L. BARLESTON, )

)

Respondent. )

Case No. 05-4548PL

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by Administrative Law Judge T. Kent Wetherell, II, on March 6, 2006, by video teleconference between sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Gregory A. Meeks, II, Esquire

37 North Orange Avenue, Suite 500 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what penalty is appropriate.

PRELIMINARY STATEMENT

Through an Administrative Complaint dated August 3, 2005, the Criminal Justice Standards and Training Commission (Commission) alleged that Respondent violated Sections 796.07(2)(e), 943.1395(6) and (7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b) and (c). Respondent contested the allegations in the Administrative Complaint and requested a hearing pursuant to Section 120.57(1), Florida Statutes, through an Election of Rights form received by the Commission on November 21, 2005.

On December 15, 2005, the Commission referred this case to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge to conduct the hearing requested by Respondent. The final hearing was scheduled for and held on March 6, 2006.

At the final hearing, the Commission presented the testimony of Robert Michael “R. M.” Spurlock and offered seven exhibits, Nos. 1, A-1 through A-5, and B-3, all of which were received into evidence. Respondent testified in his own behalf and did not offer any exhibits.

The Transcript of the final hearing was filed on April 14, 2006. The parties were given 10 days from that date to file proposed recommended orders (PROs). The Commission filed its

PRO on April 25, 2006. Respondent did not file a PRO. The Commission’s PRO has been given due consideration.

FINDINGS OF FACT

1. Respondent is a certified correctional officer. His certification number is 184024.

2. Respondent worked for the Department of Corrections (DOC) as a correctional officer for six and one-half years. He resigned from DOC on March 15, 2005.

3. Respondent’s resignation followed an investigation by DOC’s Office of the Inspector General (OIG) into allegations that Respondent posted photographs of himself on an adult website and that he was involved in an escort service.

4. The investigation, which was conducted by Senior Prison Inspector R. M. Spurlock, commenced after the OIG was provided a copy of a webpage printed from the Internet by Stephen Ruble, a correctional officer who worked with Respondent.

5. The webpage printed by Officer Ruble is dated December 7, 2004, and contains two photographs of Respondent

   along with a photograph of an unidentified white female referred to as “Heavenly Blonde.” In one of the photographs, Respondent is standing and wearing only G-string underwear. In the other photograph, Respondent is sitting and wearing a tank-top shirt and tight shorts through which Respondent is displaying the outline of his penis.

6. The text accompanying the photographs on the webpage printed by Officer Ruble states:

   Top Secret

   
   

   If you are looking for a classy and friendly, bi, black male who is 11x6 inches thick and can take you to the next level, then you’ve come to the right place!

   
   

   I am d/d free, and I have the papers to show this. I have sexy friends who can join us.

   
   

   Also available for doubles sessions with my friend Heavenly Blonde.

   
   

   I’m based in Orlando but travel the entire state of Florida, plus out of state, so please check in with me.

   
   

   Just give me a call and see what we can come up with! If you like to view me on camera, please contact me.

   
   

   Incall rates:

   $65 / ½ hour

   $150 / each additional hour

   
   

   Couples, join me and Heavenly Blonde:

   $200 / hour

   $100 / each additional hour

   $250 / hour for men to join us

   
   

   Heavenly Blonde by herself:

   $150 / ¾ hour

   
   

   Top Secret [phone number1]

   
   

7. Mr. Spurlock visited the same webpage on March 9, 2005, as part of his investigation.

8. The copy of the webpage printed by Mr. Spurlock on that date contains the photograph in which Respondent is standing and

   wearing only G-string underwear, but Respondent’s head had been cropped from the photograph and the photograph had been enlarged to focus on the outline of Respondent’s penis that is clearly visible through his underwear. The photograph in which Respondent was sitting and displaying the outline of his penis through his shorts was no longer on the webpage. The photograph of Heavenly Blonde was also no longer on the webpage, but there was a photograph of an unidentified black female referred to as “Secret Angel” who was posed in a sexually-provocative position wearing only a bra and G-string underwear.

9. The text accompanying the photographs on the webpage viewed and printed by Mr. Spurlock states:

   Top Secret

   
   

   Hi, I am Topsecretone from the Orlando area.

   
   

   I am very put together and love to have fun. I have many friends that can join us, male or female. For example, my friend Secret Angel is available to join us!

   
   

   I only want to talk to someone that knows what they are into and what they want.

   
   

   I am a Black male with a truly thick 11”x6” of manhood.

   
   

   Please contact me for all info, leave your full name, number and if you are at a hotel room number.

   
   

   Top Secret topsecretone@cfl.rr.com[2]

10. Mr. Spurlock interviewed Respondent on March 15, 2005, as part of his investigation. Respondent voluntarily appeared for the interview, which was conducted at Respondent’s place of employment, DOC’s Central Florida Reception Center. The interview lasted for approximately 20 minutes, and Respondent’s statements during the interview were made under oath.

11. In the interview, Respondent initially denied that he posted any photographs of himself online or that he was involved with an escort service. However, after Mr. Spurlock showed him copies of the webpages that he and Officer Ruble had printed, Respondent changed his story and admitted that he posted the photographs of himself on the webpage; that in connection the posting he offered to provide, and did provide, his sexual services for money; and that he had been advertising his sexual services over the Internet since 2001.

12. Respondent’s admissions during the interview are found to be reliable. The admissions were accompanied by details regarding the operation of webpage, the manner in which Respondent was compensated for his sexual services, and the reasons why Respondent cropped his head out of the photograph after its original posting. There is no credible evidence that the admissions were coerced and, indeed, Respondent expressly acknowledged as much at the end of the interview.

13. Respondent testified at the final hearing that the reason that he ended up making the admissions during the interview was that he was under a great deal of stress at the time, as evidenced by the fact that “just before the interview” he was given 30 days of “stress leave” by his doctor. That explanation is not persuasive because Respondent later testified that the leave occurred in November and December 2004, which was more than three months before the interview.

14. Respondent resigned from DOC approximately 15 minutes after the interview concluded.

15. In his testimony at the final hearing, Respondent did not deny that he is depicted in the photographs on the webpage printed by Officer Ruble and Mr. Spurlock.

16. However, Respondent did deny that that he posted the photographs on the webpage. Respondent testified that several months after his interview with Mr. Spurlock, he learned that his ex-girlfriend posted the photographs on the webpage to “set [him] up” and “get [him] in trouble” because she was upset with him because he would not marry her. He further testified that he was unaware that his ex-girlfriend had posted the photographs on the Internet.

17. Respondent’s explanation at the final hearing as to how the photographs appeared on the Internet is not credible. His uncorroborated, self-serving testimony on the issue was not

    persuasive. For example, Respondent’s claim that his ex- girlfriend posted the photographs on the webpage out of spite is illogical because he testified that he and his ex-girlfriend did not break-up until June 2005, whereas the photographs printed by Officer Ruble (in December 2004) and by Mr. Spurlock (in March 2005) predated the break-up.

18. Respondent testified that he had no disciplinary problems during the course of his employment with DOC. The Commission offered no evidence to the contrary.

19. The record does not reflect whether Respondent is being criminally prosecuted for the escort services that he advertised on the webpage.

    CONCLUSIONS OF LAW

    
    

20. DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (2005).3

21. The Commission has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. See Dept. of Banking & Finance v. Osborne, Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

22. The Commission is authorized to take disciplinary action against a certified officer if it finds that the officer

    “has not maintained good moral character.” § 943.1395(7), Fla. Stat.

23. It is not necessary to resort to the judicial definitions of “good moral character” cited by the Commission in its PRO because the Commission has defined the phrase by rule.4 See Fla. Admin. Code R. 11B-27.0011.

24. As it most directly relates to this case, the rule provides:

    (4) . . . a certified officer’s failure to maintain good moral character 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 . . . 796.07 . . ., F.S. Fla. Admin. Code R. 11B-27.0011(4)(b)1.

25. Section 796.07, Florida Statutes (2004),5 which is the statute that the Commission alleged that Respondent’s conduct violated, provides in pertinent part:

    1. As used in this section:

       
       

       (a) “Prostitution” means the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

       
       

       * * *

       1. “Assignation” means the making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement.

          
          

       2. “Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; . . . .

          
          

    2. It is unlawful:

       
       

       * * *

       
       

       1. To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.

       
       

       § 796.07(1)-(2), Fla. Stat.

       
       

26. A violation of Section 796.07, Florida Statutes, is a misdemeanor for the first or second offense, and a third degree felony for third and subsequent offenses. See § 796.07(4), Fla. Stat.

27. The evidence clearly and convincingly establishes that Respondent posted sexually-provocative photographs of himself on the Internet; that, in connection with the posting, he offered to provide his sexual services (and those of Heavenly Blonde and Secret Angel) for money; and that according to his sworn statements to Mr. Spurlock, he did provide his sexual services for money.

28. Respondent’s conduct constitutes a violation of Section 796.07, Florida Statutes, and, therefore, is contrary to the good moral character standard in Florida Administrative Code Rule 11B-27.0011(4)(b)1. The fact that Respondent has apparently not been criminally prosecuted for that conduct is immaterial under the rule.

29. The penalties that may be imposed by the Commission against a certified officer who fails to maintain good moral character are:

    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. . . . .

       
       

    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.

    
    

    § 943.1395(7), Fla. Stat. Accord Fla. Admin. Code R. 11B- 27.005(7) (listing the penalties “in increasing order of severity,” starting with the issuance of a reprimand and culminating with revocation of certification).

30. The Commission has broad discretion to determine the appropriate penalty within the statutory range, subject to the

    disciplinary guidelines adopted pursuant to the mandate in Section 943.1395(8), Florida Statutes. See Criminal Justice

    Standards & Training Comm’n v. Bradley, 596 So. 2d 661 (Fla. 1992).

31. The guidelines establish the range of penalties that must be imposed for particular violations in the absence of aggravating or mitigating circumstances. See Fla. Admin. Code R. 11B-27.005(4)(a).

32. The penalty range for the conduct engaged in by Respondent is “prospective suspension to revocation.” See Fla. Admin. Code R. 11B-27.005(5)(b)8. The Commission is seeking the revocation of Respondent’s certification. See Commission’s PRO, at 7-8.

33. The Commission may only deviate from the penalty range established by the guidelines upon proof of aggravating or mitigating circumstances at the final hearing. See Fla. Admin. Code R. 11B-27.005(6).

34. There are no aggravating or mitigating circumstances that would justify such a deviation in this case, and the most severe penalty allowed for the offense -- revocation of Respondent’s certification -- is appropriate under the circumstances. Respondent’s six and one-half year tenure as a certified officer without a prior disciplinary history and his forthrightness regarding his conduct (albeit after his initial

denial) during the investigation conducted by Mr. Spurlock are outweighed by his lack of candor at the final hearing, the blatant disregard for the law that Respondent showed in regards to his conduct, and the lack of any documented rehabilitation efforts or positive character references.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Commission issue a final order revoking Respondent’s certification.

DONE AND ENTERED this 2nd day of May, 2006, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II 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 2nd day of May, 2006.

ENDNOTES

1/ Exhibit A-2 (bold and italics in original). The phone number shown on the exhibit is omitted in this Recommended Order because Respondent indicated that the number is “attached to

[him] in some way” (see Exhibit A-3, at 4), which arguably makes it confidential pursuant to Section 119.071(4)(d)1., Florida Statutes.

2/ Exhibit B-3 (bold in original).

3/ All statutory references in this Recommended Order are to the 2005 version of the Florida Statutes, unless otherwise noted.

4/ See Commission's PRO, at 5-6, which cites Florida Board of Bar Examiners re G.W.L., 364 So. 2d 454, 458 (Fla. 1978) (“[A] lack of ‘good moral character’ should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation”), and Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977) (“Moral character, as used in this statute [governing the issuance of liquor licenses], 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.”), and White v. Beary, 237 So. 2d 263, 265-66 (Fla. 1st DCA 1970) (“We doubt that the legislature could in its infinite wisdom detail each salient standard for good moral character. What constitutes good moral character is a matter to be developed by facts, evaluated by the agency, with a judicial review of same ever available.”).

5/ All references to Section 796.07, Florida Statutes, are to the 2004 version of the statute in effect at the time of the acts alleged in the Administrative Complaint and established at the final hearing through the webpage printed in December 2004 and March 2005 and Respondent’s sworn statements to Mr. Spurlock related thereto.

COPIES FURNISHED:

Michael Crews, Program Director Division of Criminal Justice

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

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

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

Gregory A. Meeks, II, Esquire

Law Offices of Gregory A. Meeks, II P. A.

37 North Orange Avenue, Suite 500 Orlando, Florida 32801

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: 05-004548PL

Orders for Case No: 05-004548PL