STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

JESSE DIEGUEZ, )

)

Respondent. )

Case No. 03-4019PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this proceeding on January 7, 2004, in Miami, Florida, before Florence Snyder Rivas, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Teri Guttman Valdez, Esquire

1550 Madruga Avenue, Suite 323 Coral Gables, Florida 33146

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in an Amended Administrative Complaint dated January 31, 2003, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated January 31, 2003, and filed with the Division of Administrative Hearings on October 29, 2003, Petitioner seeks to revoke the law enforcement certificate of Respondent, Jesse Dieguez (Respondent or Dieguez) for failure to maintain good moral character by committing acts which constitute a violation of Sections 800.04(4), 800.04(5)(a), 800.04(7)(a), 837.02(1), Florida Statutes; Section 943.1395(6) and (7), Florida Statutes; and making a false statement under oath to police investigators.

Respondent timely requested a hearing to challenge the proposed discipline. The case was referred to the Division of Administrative Hearings, which noticed and conducted a formal hearing pursuant to Section 120.57(1), Florida Statutes.

The identity of witnesses, exhibits and attendant rulings is set forth in the one-volume transcript of proceedings, which was filed on February 19, 2004.

The parties jointly sought, and were granted, an enlargement of time to file proposed recommended orders through April 9, 2004. Proposed Recommended Orders were timely submitted and have been carefully considered.

FINDINGS OF FACT

1. At all times material to this case, Dieguez is a certified law enforcement officer employed by the Sweetwater Police Department. As such, he holds a position of high trust.

2. Dieguez abused that trust by failing to maintain good moral character. Specifically, he sexually abused a minor over a period of years, and lied under oath to law enforcement officers investigating the abuse.

3. For almost a decade, Dieguez was in a relationship of trust with a young girl (the victim). Dieguez abused that trust by taking advantage of his access to the victim to sexually violate her on repeated occasions, beginning when she was well below the age of consent.

4. Dieguez maintained the victim's silence by virtue of his position of authority over her. More specifically, at all times material to this case, Dieguez is the primary breadwinner for the victim, the victim's mother, and the victim's two siblings.

5. Dieguez alternated acts of kindness and generosity toward the victim with threats and intimidation.

6. Dieguez also left a paper trail which, for reasons set forth below, provided clear and convincing evidence of his guilty knowledge of his improper conduct toward the victim.

7. Dieguez created at least three documents which he referred to as "contracts" between himself and the victim. The contracts first came to light on February 15, 2001, when the victim's mother accompanied her daughter to the Metro-Dade Police Department to lodge an abuse complaint against Dieguez.

8. At that time, the victim told investigators, "He wrote me contracts, like stating something in return, like touching my vagina, having sexual intercourse, or me to ejaculate him." In the context of Dieguez' relationship with the victim and, more significantly, in considering the "contracts" as a whole, it is clear that the contracts were part of an ongoing scheme by Dieguez to induce the victim to continue to submit to him sexually, and to maintain silence about the abuse.

9. Within days of filing the complaint, the victim's mother had a change of heart. Henceforth, and through the date of the hearing, she impeded the investigation by actively discouraging her daughter from cooperating with investigators.

10. Dieguez was nevertheless questioned under oath about the abuse allegations by duly-authorized investigating officers. He denied any improper conduct towards the victim.

11. In May 2001, three documents matching the victim's description of the "contracts" were found in the trunk of Sweetwater police vehicle number 953. Specifically, the documents were located underneath a lining attached to the spare

    tire compartment. Vehicle number 953 had previously been assigned to Dieguez. The handwriting on the documents was matched to Dieguez.

12. The "contracts," which were admitted into evidence without objection, speak loudly regarding the improper nature of Dieguez' relationship to the victim.

13. At the time of the final hearing, the victim, then 19, testified in support of Dieguez, claiming that she had lied to investigators, and to friends, about having been abused by him. By the time of the hearing, the victim had, as one of the investigating officers put it, "flipped twice" as to whether she had in fact been abused by Dieguez.

14. The victim was accompanied to the hearing by an attorney, who entered an appearance on her behalf but made no motions. The victim's mother was also present with Respondent.

15. The trier-of-fact carefully observed the young woman's demeanor under oath and has no hesitation in saying that her purported denial of abuse served instead to corroborate the "contracts" in which Dieguez documents the true and improper nature of his conduct toward the victim.

16. The victim was plainly in distress as she gave her testimony. She claimed, unpersuasively, not to remember details of her allegations, nor of the investigation itself. She claimed not to have spoken with her mother about her allegations

    against Dieguez at any time after February 15, 2001. In fact, she denied speaking to anybody about the allegations, including the attorney who was present on her behalf.

17. Under all the circumstances, the "contacts" in Dieguez' handwriting affirmatively and compellingly demonstrate the unreliability of the victim’s in court denial of abuse.

18. Florida law requires, as a minimum qualification for its law enforcement officers, that they be of good moral character. Florida law further provides that officers who lack good moral character may be stripped of their license to serve in law enforcement. Making a false statement under oath is an independent ground upon which a law enforcement officer's license may be revoked.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. § 120.57(1), Fla. Stat.

20. Petitioner has the burden to show by clear and convincing evidence that the Respondent committed the acts alleged in the Amended Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

21. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida, including the obligation to maintain good moral character.

22. "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. . . ." White v. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970).

23. Here, the facts compellingly establish Dieguez's lack of good moral character. In Zemour, Inc. v. Division of

    Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), the court defined moral character as ". . . 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. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral

    character. "

    
    

24. In Florida Board of Bar Examiners Re: G.W.L., 364 So.

    
    

    2d 454 (Fla. 1978), the Florida Supreme Court, in a case involving admission to the bar, stated that a finding of a lack of good moral character

    should not be restricted to those acts that reflect moral turpitude, but rather extends to 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.

25. Dieguez' conduct over a period of years, by any civilized measure, violated the rights of the victim in a manner sufficient, standing alone, to warrant revocation of his law enforcement certificate. By lying under oath to investigators, he committed an entirely different and equally serious offense.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dieguez's law enforcement certificate be permanently revoked.

DONE AND ENTERED this 12th day of April, 2004, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 12th day of April, 2004.

COPIES FURNISHED:

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

Teri Guttman Valdez, Esquire 1550 Madruga Avenue, Suite 323 Coral Gables, Florida 33146

Rod Caswell, 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

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: 03-004019PL

Orders for Case No: 03-004019PL