STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

TOMMIE LEE MAYWEATHER,

Respondent.

/

Case No. 12-3993PL

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2012), before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings ("DOAH"), on July 2, 2013, by video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jeffrey Dambly, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: Tommie Lee Mayweather, pro se

STATEMENT OF THE ISSUES

Whether Respondent, a certified correctional officer, failed to maintain good moral character as required by chapter 943, Florida Statutes, and Florida Administrative Code Rule 11B- 27.011, and if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On or about December 6, 2011, Petitioner filed an Administrative Complaint against Respondent, alleging that Respondent violated the requirement in chapter 943 and rule 11B-

27.011 that he maintain good moral character by having committed various acts that constitute criminal exposure of his sexual organ. Respondent requested an administrative hearing to dispute the allegations in the Administrative Complaint. The matter was referred to DOAH on or about December 13, 2012, for conduct of a hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes.

The final hearing initially was scheduled for February 4, 2013, but pursuant to request by Respondent, was rescheduled for July 2, 2013.

The final hearing was held on July 2, 2013. Petitioner presented the testimony of Captain Eric Parrish,1/ Lieutenant Edison Olds, and Officer Demetrices Demeritte. Petitioner's Exhibits C and E were admitted into evidence without objection.

Respondent testified on his own behalf and did not proffer any exhibits for admission into evidence.

The one-volume Transcript was filed on July 15, 2013, and the parties were given ten days to file their proposed recommended orders. Petitioner timely filed its Proposed Recommended Order, which was duly considered in preparing this Recommended Order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. (2009).2/

   2. Respondent was certified as a correctional officer by Petitioner on July 8, 2009, and holds Correctional Certificate Number 284876. In February through May, 2010, the time frame relevant to this proceeding, Respondent was employed as a correctional officer at Miami-Dade Correctional Institute ("Miami-Dade CI").

2. Incident Giving Rise to this Proceeding

   
   

   1. On or about July 29, 2010, Captain Eric Parrish, a midnight shift supervisor at Miami-Dade CI, convened a meeting

      
      

      of several employees under his supervision. Among those present at the meeting were Respondent and Officer Demetrices Demeritte. The purpose of the meeting was to address rumors regarding alleged sexual activity among staff members while present or on duty at Miami-Dade CI.3/ Ultimately, these rumors were determined to be unsubstantiated.

   2. However, at the meeting, Demeritte informed Parrish that Respondent had exposed his penis to her while they both were on duty at Miami-Dade CI.

   3. Respondent verbally admitted at the meeting that he did show Demeritte his penis, but stated that she had wanted to see it.

   4. Parrish ordered everyone in attendance at the meeting to complete an incident report after the close of the meeting.4/ Consistent with Petitioner's standard practice regarding the completion of incident reports, Parrish requested that the reports be submitted by the end of the shift.5/ This gave the employees approximately four hours to complete their reports. Ultimately, Parrish collected completed incident reports from all in attendance at the meeting, including Respondent.

   5. In his incident report, Respondent stated that he and Demeritte had engaged in discussions regarding sexual matters on more than one occasion. Respondent acknowledged that he exposed his penis to Demeritte on one occasion when they had discussed

      
      

      its size, and that upon seeing it, Demeritte took off in her post vehicle. The next day she asked him not to do that again because he was not "her man." Respondent stated that he apologized to Demeritte and considered the matter resolved between them as friends.

   6. Based on the information provided in the incident reports, Parrish recommended that Respondent and others be reviewed for disciplinary action. On or about December 6, 2011, Petitioner filed an Administrative Complaint against Respondent, alleging that he had failed to maintain good moral character, as required by section 943.17, by having engaged in acts that constitute indecent exposure pursuant to section 800.03.

   7. Violation of section 800.03 is a misdemeanor of the first degree. § 800.03, Fla. Stat. (2009).

   8. There is no evidence in the record that Respondent was arrested or prosecuted for, convicted of, or pled guilty or nolo contendere to, a violation of section 800.03.

3. Evidence Adduced at the Final Hearing

   
   

   1. At hearing, Demeritte testified that while she and Respondent were on duty inspecting the fence line or refueling vehicles or at other posts, Respondent exposed his penis to her on four separate occasions. In doing so, he would tell her to "look" and would watch her while exposing himself. Demeritte testified that on one of these occasions, he stroked his penis.

      
      

      Demeritte testified that she was uncomfortable and offended by Respondent's actions, that she considered his actions vulgar, and that on each occasion, she drove away. After she finally confronted Respondent, he apologized and never exposed himself to her again. The undersigned finds Demeritte's testimony credible and persuasive.

   2. Demeritte reported the incidents to the Equal Employment Opportunity Commission. However, not until the July 29, 2010, meeting did she report the incidents to Petitioner. Demeritte claimed that she did not report the incidents due to a "breach of confidentiality." No specific explanation was provided regarding what the breach of confidentiality entailed or why it deterred Demeritte from reporting the incidents before July 29, 2010.

   3. At the hearing, Respondent recanted his statement in his July 29, 2010, incident report that he had exposed his penis to Demeritte on one occasion. Respondent testified that the statements in his report were "sarcastic" and that he had needed more time to complete his incident report. However, Parrish credibly testified that near the end of the shift, Respondent told him he was still working on the incident report, but that at the end of the shift, Respondent provided the completed, signed, dated report and did not ask for more time to complete the report.

      
      

   4. Respondent denied having exposed his penis to Demeritte while on duty, and testified that he previously had performed as a dancer at private functions and that she may have seen his penis under those circumstances. Respondent's testimony on these points was not credible.

   5. Consistent with his incident report, Respondent testified that he and Demeritte engaged in discussions of a sexual nature on several occasions. There is no other evidence in the record directly corroborating or refuting this claim. However, the evidence does establish that around the time of the incidents at issue in this proceeding, there was discussion of, and rumors regarding, sexual matters between officers employed on the midnight shift at Miami-Dade CI. Under these circumstances, the undersigned finds credible Respondent's account that he and Demeritte engaged in discussions of a sexual nature.

   6. The undersigned does not find credible any claim by Respondent that Demeritte wanted or asked him to expose his penis to her.

   7. However, the undersigned finds it plausible that Respondent may not have understood that Demeritte was offended by his actions, particularly if they engaged in discussions of a sexual nature, and also given that she did not tell him, until after the fourth incident, to not expose himself to her.

      
      

      Indeed, once she told him not to expose himself to her, his behavior ceased and he apologized.

   8. There is no evidence in the record that Respondent previously has been subject to disciplinary action by Petitioner.

4. Findings of Ultimate Fact

1. Based on the foregoing, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent exposed his penis to Demeritte on four separate occasions, in violation of section 800.03, and that in doing so, he failed to maintain good moral character, as required by section 943.13(7).

2. Respondent's behavior in exposing himself to Demeritte was inappropriate and unacceptable. However, the undersigned finds that the circumstances afoot around the time of Respondent's actions——specifically, discussions and rumors of sexual matters between staff, discussions of a sexual nature between Respondent and Demeritte, and the fact that Demeritte did not tell Respondent to stop exposing himself to her until after he had done so four times——may have created an atmosphere that led Respondent, mistakenly, to believe that such behavior was not a significant departure from the accepted norm on the Miami-Dade CI midnight shift at that time.

   
   

   CONCLUSIONS OF LAW

   
   

3. DOAH has jurisdiction over the parties to, and subject matter of, this proceeding pursuant to sections 120.569 and 120.57(1).

4. This is a penal disciplinary proceeding against Respondent's correctional officer certification. Accordingly, Petitioner must prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking &

   Fin., Div. of Secs. & Investor Prot. v. Osborne Stern, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d

   292, 294 (Fla. 1987).

   
   

5. The clear and convincing evidence standard 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 lacking in confusion as to the facts in issue. The evidence must be of such a 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 v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

   
   

6. The Administrative Complaint alleges that Respondent violated section 800.03 and, in doing so, failed to maintain good moral character as required by section 943.13(7).

7. Section 943.1395(7) provides in pertinent part:

   
   

   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 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 the certificate or impose additional penalties as enumerated by 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.

      
      

8. Rule 11B-27.0011(4),6/ which defines "good moral character," provides in pertinent part:

(4) For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in [s]ection 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:

* * *

(b) [T]he perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses

whether criminally prosecuted or not: 1. s. 800.3.

1. Here, the clear and convincing evidence shows that Respondent violated section 800.03, and thus failed to maintain good moral character as required by section 943.13(7). In doing so, he violated section 943.1395(7) and rule 11-27.0011(4).

2. Rule 11B-27.0057/ establishes the guidelines and range of penalties applicable to disciplinary proceedings involving correctional officers.

27. Rule 11B-27.005(4)(a) provides:

The Commission sets forth in paragraphs (5)(a)-(d) of this rule section, a range of disciplinary guidelines from which disciplinary penalties shall be imposed upon certified officers who have been found by the Commission to have violated [s]ection 943.13(7), F.S. The purpose of the disciplinary guidelines is to give notice to certified officers of the range of penalties or prescribed penalties that shall be imposed for particular violations of [s]ection 943.13(7), F.S., absent aggravating or mitigating circumstances, as provided in subsection (6) of this rule section. The disciplinary guidelines are based upon a "single count violation" of each provision listed. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), that may be included in the final penalty at the Commission's discretion.

1. The disciplinary guidelines in rule 11B-27.005(5)(b) provide in pertinent part:

   
   

   (b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 11B-27.0011(4)(b), F.A.C., but where there was not a violation of [s]ection 943.13(4),[8/] F.S., the action of the Commission shall be to impose a penalty ranging from probation of certification to suspension of certification. Specific violations and penalties that shall be imposed, absent aggravating or mitigating circumstances, include the following:

   
   

   Violation Recommended Penalty Range:

   
   

   * * *

   
   

   9.	Indecent Exposure	Suspension, and probation with counseling to
   	(800.03,	revocation
   	F.S.)

   
   

2. Pursuant to rule 11B-27.005(5)(b)9., the undersigned recommends that Respondent's certificate be suspended for a period of six months, followed by two years' probation, and that Respondent be required to undergo counseling.

3. This recommendation is made considering the following circumstances: (a) Respondent's actions ceased after Demeritte told him not to expose himself, and he apologized to her;

(b) the atmosphere and discussions regarding sexual matters taking place on the midnight shift at Miami-Dade CI near the time of the alleged incidents, including discussions of a sexual nature with Demeritte, may have contributed to Respondent's mistaken belief that his behavior was not a significant departure from the accepted norm; and (c) this appears to be the

first and only time Respondent has been disciplined by Petitioner. Given these circumstances, revocation of Respondent's correctional certificate is too harsh a penalty. The recommended penalty is consistent with Petitioner's disciplinary guidelines in rule 11B-27.005(5)(b) and is appropriate given these circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Criminal Justice Standards and Training Commission, enter a final order suspending Respondent's correctional officer certification for a period of six months, imposing two years' probation, and ordering Respondent to undergo counseling.

DONE AND ENTERED this 6th day of August, 2013, in Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings This 6th day of August, 2013.

ENDNOTES

1/ Parrish testified telephonically, and the notary administering the oath subsequently filed the attestation with DOAH.

2/ The 2009 versions of chapters 800 and 943 were in effect at the time of Respondent's actions that are alleged to violate these statutes, and therefore apply to this proceeding.

3/ Specifically, there were rumors among the employees that Respondent and two other correctional officers were involved in a sexual incident in an on-campus dormitory, and that a condom had been found in one of the institute's post vehicles.

4/ No incident reports from those in attendance other than Parrish and Respondent were entered into evidence. The record evidence from those with personal knowledge of the alleged incidents consists of Respondent's incident report and hearing testimony and Demeritte's hearing testimony. Parrish viewed video of the area between the internal and external fences for visual evidence of the allegations; however, the video did not depict any of the alleged incidents.

5/ Parrish testified that if an employee is not finished with a report, he or she has 24 hours to complete and submit the report. He also testified that if an incident occurs close to the end of a shift, employees are authorized to stay over and complete their reports so as to provide information while the incident is still fresh in their minds.

6/ The version of rule 11B-27.004 in effect at the time of Respondent's actions, and therefore applicable to this proceeding, was adopted on April 16, 2009. The rule amendment that went into effect on June 3, 2010, and all subsequent amendments, including those currently in effect, are not applicable because they were not in effect at the time of Respondent's actions. See § 120.54(1)(f), Fla. Stat. (2012)("An agency may not adopt retroactive rules, including retroactive rules intended to clarify existing law, unless that power is expressly authorized by statute.").

7/ The version of rule 11B-27.005 applicable to this proceeding was adopted on June 9, 2008, and was in effect at the time Respondent committed the actions that are the subject of this proceeding.

8/ This statute refers to having been convicted of, or pled guilty or nolo contendere to, a felony or misdemeanor. As previously noted, there is no evidence that Respondent was arrested or prosecuted for, convicted of, or pled guilty or nolo contender to, section 800.03 or any other felony or misdemeanor.

COPIES FURNISHED:

Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 Tommie Lee Mayweather

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism 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: 12-003993PL

Orders for Case No: 12-003993PL