STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

JON M. PLANTE,

Respondent.

/

Case No. 13-0695PL

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted pursuant to section 120.57(1), Florida Statutes, in Tallahassee, Florida, by Lisa Shearer Nelson, an administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jeffrey Dambly, Esquire

Elissa Saavedra, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Jon M. Plante, pro se

(Address of record) STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent has failed to maintain good moral character as defined in Florida Administrative Code Rule 11B-27.0011(4)(b), in violation of section 943.1395(7), Florida Statutes (2011).

PRELIMINARY STATEMENT

On October 31, 2012, the Criminal Justice Standards and Training Commission (the Commission or Petitioner) issued an Administrative Complaint against Respondent, Jon Plante, alleging that Respondent failed to maintain good moral character in violation of section 943.1395(7), as defined by rule 11B- 27.0011(4)(b). As a factual basis for the charge, the Administrative Complaint alleges that between December 2 and 11, 2011, Respondent "willfully, maliciously, and repeatedly harass[ed], or cyber stalk[ed] another person, to wit: Ashley Hegler, by sending lewd text messages about her to her husband's cellphone, which caused substantial emotional distress in said person and served no legitimate purpose," which, according to the Administrative Complaint, violated the provisions of section 784.048.

Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57. On February 21, 2013, the case was referred to the Division of Administrative Hearings for the assignment of an administrative law judge.

Notice for a hearing to be conducted May 2, 2013, was issued on March 5, 2013. Petitioner's request for a continuance was denied, and the hearing proceeded as scheduled. At hearing, Petitioner presented the testimony of six witnesses and

Petitioner's Exhibits A through E were admitted into evidence without objection. Respondent chose not to testify or to present any evidence.

A one-volume Transcript of the proceedings was filed with the Division on May 13, 2013. Petitioner filed its Proposed Recommended Order on May 23, 2013. As of the date of this Recommended Order, no submission has been filed by Respondent. All references to Florida Statutes are to the 2011 codification unless otherwise indicated.

FINDINGS OF FACT

1. Respondent is a certified law enforcement officer, to whom Petitioner issued certification number 62352.

2. In or around 2005-2006, Respondent and Ashley Jourdan had a dating relationship. That relationship ended in December 2006, upon Respondent's arrest for battering her.

3. On or about April 17, 2007, Respondent pleaded nolo contendere to a misdemeanor charge of battery, in violation of section 784.03(1)(a)1., Florida Statutes. As a result of this plea, adjudication was withheld and Respondent was sentenced to

   12 months of probation requiring 775 hours of community service; no contact with Ms. Jourdan; participation in a Batterers’ Intervention Program; and restitution. Respondent completed the conditions of probation and it was terminated April 28, 2008.

   
   

4. After Mr. Plante's arrest, Ms. Jourdan sought and received an injunction against him, which remained in place until September 2009. She let it expire at that time because she was then married and expecting her first child, and had had no contact with Respondent since his arrest. She wanted to "move on" with her life and thought it was safe to do so.

5. Ashley Jourdan and James Hegler married in 2009. In December 2011, the Heglers were living together. Ms. Hegler was working at the Florida Department of Law Enforcement.

6. On December 2, 2011, James Hegler received two text messages about his wife, Ashley Jourdan Hegler. The text messages stated: "We the women of fdle would like 2 ask u to keep your wife from f---ing her way through our workplace."1/ The phone number from which the messages were sent was (850) 274- 8056.

7. Mr. Hegler showed the message to his wife, and one of them posted the number on Facebook to see if anyone knew whose phone number was used. He also blocked the number on his telephone.

8. On December 11, 2011, Mr. Hegler received four additional text messages, originating from a different telephone. Those messages are as follows:

   • (Sent at 1:28 a.m.): We the women and wives of FDLE would like u 2 controll ur wife and keep her from f---ing her way through the

     
     

     entire agency. Yes its gotten that bad. We r annomimous cause she brags how she can't b touched here at fdle cause her daddy. She

     braggs that u knew what she was when u met her[2/]

     
     

   • (Sent at 1:50 a.m.): Surely this comes as no shock 2 u. she braggs how u knew thats what she was when u met

     
     

   • (Sent at 2:03 a.m.): Yes we r conectected but r daddies aren’t doyl. But if u think we arent sick of here trying to f--- up as she puts it. Or as she says if ur not f--- in up ur f---in up

     
     

   • (Sent at 2:09 a.m.): Truly u already know u werent the only dick in that s---

   
   

9. The texts were sent from a phone with the number (850) 545-6952. James Hegler showed the texts to his wife, Ashley Jourdon Hegler, who considered the possibility that they might originate with Respondent. The texts alone made her feel harassed, and that someone must hate her a lot to try to text her husband. The idea that Respondent might have sent them made her frightened and upset.

10. The Heglers contacted a friend whose husband was employed by the Leon County Sheriff's Office (LCSO) for guidance, and as a result, went to the LCSO to file a complaint. The case was assigned to Detective Shannon Black of the Violent Crimes/Homicide Unit of the LCSO. Detective Black's ex-wife is the friend to whom the Heglers’ had spoken before going to the LCSO. When Detective Black spoke to the couple, Ms. Hegler raised

    
    

    the possibility that Respondent might be the person responsible for the texts. Detective Black dismissed the possibility as implausible.

11. Detective Black's investigation showed that the number used in the December 11, 2011, text messages (850-545-6492) was attached to a Verizon Wireless pre-paid account. A subpoena was sent to Verizon Wireless to obtain the purchase information for the telephone assigned to this number.

12. The information received from Verizon in response to the subpoena revealed that the telephone used to send the text messages to Mr. Hegler was an LG Revere VN150 model telephone purchased at the Walmart at 1500 Thomasville Road in Tallahassee, Florida (Store 1223), on December 10, 2011. The phone was activated the same day.

13. Detective Black then visited the Walmart on Thomasville Road and met with Larry Gunn, Walmart's Asset Protection Manager for Store 1223. A review of Walmart records showed that two LG Revere VN150 model telephones were purchased at the store on December 10, 2011.

14. Detective Black and Mr. Gunn reviewed surveillance tapes as well as transaction records for Store 1223, and determined that one of the phones purchased December 10, 2011, was purchased by a female customer with a credit card, and the other was purchased by a man who paid cash.

    
    

15. The female customer was identified as Kathryn Wells.

    
    

    She purchased the prepaid phone, along with other grocery items. The phone was purchased as a part of a project for her church to provide Christmas gifts for the children at the Florida Baptist Children's Home. She never activated the phone, but wrapped it up and delivered it to her church, and was present when it was opened in front of the congregation on Christmas.

16. Detective Black was also able to review the surveillance tape of the purchase of the second telephone, which identified a white male wearing dark clothing and a baseball cap. Mr. Gunn was then able to backtrack, using the time stamps, and follow the video footage to the point where the purchaser entered the store, where there was a better view. Detective Black was able to positively identify Respondent as the purchaser based upon his personal knowledge of Respondent as his former training officer and fellow member of the SWAT team.

17. Detective Black obtained a copy of the video from Mr. Gunn and took it to the LCSO. There, he asked several co- workers to identify the person in the video. According to Detective Black, all identified the purchaser as Jon Plante.

18. Detective Black also called Ms. Hegler and asked her to come in and identify the person in the video. She immediately identified the person as Jon Plante, and Detective Black described her reaction as shocked and terrified.

    
    

19. In Ms. Hegler's words, she is "scared to death" of Respondent. After seeing him in the video surveillance, she and her husband took their young daughter to Fort Lauderdale to stay with her mother for a while, believing she would be safer there. They also purchased a firearm for her vehicle, took shooting lessons, and had additional security installed. Extra patrols from the sheriff's office were instituted and another male family member stayed with the Heglers for a few nights because of

    Ms. Hegler's emotional reaction upon learning that Respondent was responsible for the texts. Ms. Hegler also filed another petition for injunction against Respondent. She testified credibly that a temporary injunction was entered December 30, 2011, "put in place" in January 2012, and remains in effect.

20. Detective Black attempted to contact Respondent during the investigation but was unsuccessful. A warrant for Respondent's arrest was issued on December 22, 2011, and he turned himself in to authorities on December 29, 2011.

21. Both Ms. Hegler and Detective Black believed that, based upon the content of the messages, the text messages sent

    December 2 and December 11 were sent from the same person. It is so found.

22. At the time of the hearing, the Heglers had separated, Detective Black had gone through a divorce, and sometime after the divorce, Ms. Hegler and Detective Black had started seeing each

    
    

    other. However, there was no credible evidence to indicate that they were involved in anything but a friendship between couples at the time of the investigation of this case, or that their current relationship affected the conduct of the investigation in any way.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2012).

24. This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to discipline Respondent’s certification as a law enforcement officer. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t

    of Banking & Fin. v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

25. As stated by the Supreme Court of Florida,

    
    

    Clear and convincing evidence 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.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

    
    

26. The Administrative Complaint contains the following factual allegations:

    1. Between December 2, 2011 and December 11, 2011, the Respondent Jon M.

       Plante, did willfully, maliciously, and repeatedly harass, or cyber stalk another person, to wit: Ashley Hegler, by sending lewd text messages about her to her husband's cellphone, which caused substantial emotional distress in said person and served no legitimate purpose.

       
       

    2. The actions of the Respondent did violate the provisions of Section 784.048 or any lesser included offenses, section 943.1395(7), Florida Statutes and Rule 11B- 27.0011(4)(b), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Law Enforcement officer in the State of Florida have good moral character.

       
       

27. Section 943.13 establishes the minimum qualifications for certification of law enforcement officers in Florida. Subsection (7) provides that an officer must have "good moral character as determined by a background investigation under procedures established by the commission."

28. Subsections 943.1395(7) and (8) state:

    
    

    (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 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 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.

    
    

    (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7). (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for prohibited conduct. The penalties must be consistently applied by the commission.

    
    

29. The Commission has defined “good moral character” for purposes of section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011(4). At the time of the alleged offense, rule 11B-27.0011(4) provided 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), F.S., a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (b) Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or 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 . . . 784.048, 784.05,

    784.046(15). . . , F.S.

    
    

30. Section 784.048 provides in pertinent part:

1. As used in this section, the term:

   1. “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.

   2. “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 protests.

   3. “Credible threat” means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

   4. “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic

   
   

   mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

2. Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

31. In Bouters v. State, 659 So. 2d 235, 238 (Fla. 1995), the Supreme Court of Florida addressed a vagueness challenge to section 784.048, stating:

In the present case, Bouters claims that the statutory definition of "harasses" is impermissibly vague Bouters

contends that this creates a subjective standard for "substantial emotional distress," and that an unduly sensitive victim may suffer such distress from entirely innocent conduct.

The court in Pallas v. State, 636 So. 1358 (Fla. 3d DCA 1994), correctly addressed this issue:

In our view the statute creates no such subjective standard, but in fact creates a "reasonable person" standard. The stalking statute bears a family resemblance to the assault statutes. Under the assault statutes, it is settled that a "well-founded fear" is measured by a reasonable person standard, not a subjective standard. Indeed, "where the circumstances were such as to ordinarily induce fear in the mind of a reasonable man, then the victim may be found to be in fear, and actual fear need not be strictly and precisely shown."

The same principle applies to the definition of "harasses" under the stalking statute; the legislature has proscribed willful, malicious, and repeated acts of harassment which are directed at a specific person, which serve no legitimate purpose, and which would cause substantial emotional distress in a reasonable person.

Id. at 1361 (citations omitted). We agree with this analysis and find that the statute is not impermissibly vague.

1. In this case, Petitioner has met its burden whether the evidence is judged by an objective or subjective standard. Six separate texts were sent to Mr. Hegler on two separate days, over a ten-day period. All of the texts made volatile and inflammatory allegations about the character of his wife. Those texts caused substantial emotional distress for Ashley Jourdan Hegler, about whom the texts were written.

2. Under a subjective standard, the evidence showed that Ms. Hegler was already fearful of Respondent based upon their prior relationship. The texts alone were upsetting to her. Upon realizing the texts sent to her husband were from Respondent, she was fearful enough that she took shooting instruction, bought a firearm, added additional security at their home, and took her daughter to stay with relatives in order to insure her safety.

3. Under an objective standard, the texts sent to Mr. Hegler could serve no purpose other than to impugn

   
   

   Ms. Hegler's character and possibly cause turmoil in her relationship with her husband. Those are not legitimate purposes. The texts by their nature would cause any reasonable person about whom they were written substantial emotional distress. When considered in light of Ms. Hegler's past relationship with Respondent, and his plea of nolo contendere for battering her, Ms. Hegler was more than justified in feeling fearful as a result of the texts. The fact that the texts were sent to her husband, as opposed to Ms. Hegler, does not change the character of the message sent. Seitz v. State, 867 So. 2d 421, 423 (Fla. 3d DCA 2004).

4. By proving that Respondent engaged in conduct that would constitute a violation of section 784.048, Petitioner demonstrated a violation of section 943.1395(7), as defined by rule 11B- 27.0011(4)(b).

5. The Commission has adopted disciplinary guidelines in order to provide notice of the range of penalties associated with violations of section 943.1395(7). Fla. Admin. Code R. 11B-

   27.005. Under the rule as it existed at the time of the offense proven in this case, the guideline penalty for stalking is a prospective suspension to revocation.3/ Aggravating and mitigating circumstances to consider include the severity of the misconduct; and the actual damage to the public, physical or otherwise, caused by the misconduct.

   
   

6. In this case, the conduct was directed toward a person Respondent battered, for which he served probation. Further, the conduct demonstrated a level of malicious behavior and poor judgment that is not acceptable in a law enforcement officer, in whom the public should be entitled to place great trust. It is appropriate to impose a penalty at the high end of the guidelines established by the Commission.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding that Respondent violated section 943.1395(7), as defined by rule 11B- 27.0011(4)(b), and revoking his certification as a law enforcement officer.

DONE AND ENTERED this 19th day of June, 2013, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 19th day of June, 2013.

ENDNOTES

1/ Letters not omitted in the original.

2/ See endnote 1.

3/ The guideline penalty for felony stalking was revocation. In the version of the rule adopted and effective May 21, 2012, the penalty is the same.

COPIES FURNISHED:

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

Tallahassee, Florida 32302

Jon M. Plante (Address of record)

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

Tallahassee, Florida 32302

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism Services

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: 13-000695PL

Orders for Case No: 13-000695PL