The Issue Whether on or about January 22, 1996, Respondent, Fidel DeLeon, did unlawfully attempt to commit a sexual battery upon Diane Smalley, a person twelve years of age or older, without the consent of Diane Smalley, by attempting to penetrate her vagina with his penis or by attempting to place his penis in union with the vagina and/or mouth of Diane Smalley, and in the process thereof used physical force and violence not likely to cause serious personal injury. Whether Respondent violated the provisions of Section 943.1395(6) and/or (7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code, in that the Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that law enforcement officers in the State of Florida have good moral character.
Findings Of Fact Respondent was certified as a law enforcement officer in Florida by the Criminal Justice Standards and Training Commission on December 7, 1990, and was issued certificate No. 113130. Respondent was employed with the Orange County Sheriff's Office on May 9, 1994. Respondent served as a road deputy during the relevant time-period, working the midnight shift. Dianne Smalley was born on January 7, 1953, and is a person twelve years of age or older. Smalley was employed by the Maitland Police Department as a dispatcher in January 1996, and worked the midnight shift. Smalley met and became acquainted with Respondent approximately a month prior to January 22, 1996. On January 21, 1996, Respondent and Smalley made plans to get together socially after Respondent got off duty. On January 22, 1996, at about two o'clock in the morning, Respondent went to the residence of Smalley and was invited in. When Respondent arrived at Smalley's residence, he was wearing his police uniform, which included a holstered gun. Respondent and Smalley socialized for about 30 minutes while in the residence. During the course of their conversation, Respondent told Smalley that he was married. After telling Smalley he was married, Respondent was asked to leave by Smalley. Respondent did not leave Smalley's residence at that point, but instead Respondent moved closer to Smalley who was sitting on the couch. Respondent pushed Smalley back on the couch, however, Respondent moved forward and kissed her on her neck. Respondent also rubbed his hands all over the body of Smalley. Smalley pushed away Respondent and told him that nothing was going to happen. She got up and walked toward the front door, expecting Respondent to leave. As Smalley moved from the dining room toward the front door, Respondent came up behind her and pushed Smalley back into the living room to where her body was bent forward over the arm of the couch. Respondent stood behind Smalley and, as she was bent over the couch, Respondent held her down by holding her arms and with the weight of his body. Respondent then tried to pull her pants down and pull up her shirt. Respondent unzipped his pants and pulled out his penis. Respondent rubbed his genitals against Smalley's posterior and placed his penis between her legs. Respondent simulated intercourse with Smalley. Respondent tried to put Smalley's hand on his penis but she resisted. Respondent asked Smalley to perform oral sex on him but she refused. Respondent tried to push Smalley's body down to perform oral sex on him, but was unable to because she locked her knees. Respondent then masturbated himself in Smalley's living room and ejaculated on the carpet in the living room. Respondent then let Smalley go and left the residence. During the course of the day, Smalley reported the incident to her roommate. Later that day, Respondent called Smalley on the telephone and apologized for what had happened. Smalley called the Orange County Sheriff's Office after viewing a news broadcast where a rape suspect, who looked similar to Respondent, had gained access to the victim's home by using a police ID. Smalley did not identify herself fully to Detective Volkerson, but identified Fidel DeLeon as a possible suspect because of what he had done to her. Through Respondent's telephone records, detectives were able to identify Smalley as the caller. An investigation was initiated and Smalley cooperated with law enforcement. During the investigation, Respondent gave investigators false and misleading statements. Following the internal investigation, Respondent was terminated from the Orange County Sheriff's Office on August 29, 1996. During the course of the investigation of this matter from January through August 1996, there was insufficient evidence of misconduct by law enforcement which would negate the integrity of the investigation into this matter. Smalley's testimony at the formal hearing was credible.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order which finds: Respondent guilty of committing attempted sexual battery on January 22, 1996; that Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that law enforcement officers have good moral character; and revoke the certification of Respondent to be a law enforcement officer in the State of Florida. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of February, 1999. COPIES FURNISHED: Karen Simmons, Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Fidel DeLeon 381 Lake Park Trail Oviedo, Florida 32765 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of conduct alleged in an Administrative Complaint. The Respondent is charged with failure to maintain good moral character by trespassing on the premises of another and by being naked on such premises.
Findings Of Fact The Respondent was certified as a sworn law enforcement officer by the Criminal Justice Standards and Training Commission on May 13, 1983, and was issued Law Enforcement Certificate Number 4384. The Respondent held such certification at all times material to this proceeding. The Respondent began employment with the Metro-Dade Police Department in early 1983, and was so employed at all times material to this case. At all times material to this case, the Respondent resided at 1421 Cottonwood Circle, Weston, Florida 33326. The Respondent's residence was one of several units in a townhouse building. In December of 1991, Ms. Kimberly McDonald3 resided at 1419 Cottonwood Circle, Weston, Florida 33326. Her 11-year-old daughter resided with her at that address. Ms. McDonald's residence was next door to the Respondent's residence. Ms. McDonald's residence in December of 1991 had a yard and patio area at the rear of the residence. There were sliding glass doors and windows that faced the yard and patio area at the rear of the residence. That yard and patio area was enclosed by a wooden fence. The fence was slightly more than six feet high. As of December 1991, Ms. McDonald had lived next door to the Respondent for approximately six months. As of December 1991, Ms. McDonald and the Respondent were casual acquaintances; neighbors who occasionally spoke to each other. On the morning of December 4, 1991, Ms. McDonald left her residence and started driving towards her place of employment. Earlier that morning, Ms. McDonald's daughter had gone to school. The Respondent saw Ms. McDonald leave her residence that morning. The Respondent also knew that Ms. McDonald's daughter had gone to school and that their residence was unoccupied. For reasons that are not made clear by the record in this case,4 shortly after the Ms. McDonald drove away on the morning of December 4, 1991, the Respondent walked to the back of Ms. McDonald's residence, removed all of his clothes, and jumped or climbed over the wooden fence around the back yard and patio area of Ms. McDonald's residence. The Respondent then walked naked across Ms. McDonald's back yard and attempted to open one of the sliding glass doors of Ms. McDonald's residence. In the meantime, before she got to her office, Ms. McDonald remembered that she had forgotten something she would need later in the day. Accordingly, she turned around and drove back home. Ms. McDonald entered her residence through the front door and had taken only a few steps into the residence when she saw the Respondent standing in her back yard, completely naked, with one of his hands on the handle of one of the sliding glass doors. Ms. McDonald was frightened and upset by the unexpected and uninvited presence of a naked neighbor. Ms. McDonald had never invited the Respondent into her house or into her enclosed back yard, nor had she ever given the Respondent permission to climb the fence and enter her back yard and patio area. The Respondent saw Ms. McDonald at about the same time she saw him. The Respondent panicked, immediately turned away from Ms. McDonald, and ran naked towards the wooden fence. When the Respondent got to the fence, he stepped on a chair and jumped over the fence. Once over the fence, the Respondent retrieved his clothes, dressed, and returned home. Ms. McDonald was very upset about finding a neighbor in her yard who appeared to be trying to enter her residence. A few minutes later, after talking to a relative, Ms. McDonald called the Broward County Sheriff's Office and reported the incident. The Sheriff's office conducted an investigation and filed criminal charges against the Respondent. Following a jury trial, the Respondent was found guilty of the offenses described in Sections 800.03 and 810.08, Florida Statutes (1991). As a result of the Respondent's conduct on December 4, 1991, Ms. McDonald was concerned about the possibility that the Respondent might engage in future bizarre conduct. She also feared for the safety of herself and her daughter, because she did not know what purpose the Respondent had in mind when he came to her house naked. Because of these concerns and fears, Ms. McDonald and her daughter immediately moved to another residence.
Recommendation Based on all of the foregoing, it is RECOMMENDED that a final order be issued in this case finding that the Respondent committed the violations charged in the Administrative Complaint and imposing a penalty consisting of the revocation of the Respondent's law enforcement certification. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May, 1999.
The Issue Whether petitioner should revoke respondent's teaching certificate or take other disciplinary action for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent David Mario Hernandez currently holds teacher's certificate No. 627596 authorizing him to teach photography. As an employee of the Leon County School Board, he taught photography at Lively Vo-Tech Center during the school year 1988-89, but his contract was not renewed; and he has not taught since, as far as the evidence shows. Incomplete Application Granted On January 20, 1988, he executed an application for teacher's certificate, certifying before a notary public that "all information pertaining to this application is true, correct and complete." Petitioner's Exhibit Number 1. On the application, submitted to petitioner on February 11, 1988, respondent checked a box next to the word "YES," in response to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Id. Immediately after this question, the form instructed applicants, "If yes, you must give complete details for each charge," id., and set out four columns headed "Where Arrested" "Date(s)," "Nature of Charge(s)" and "Disposition(s)." Id. In the appropriate columns, respondent wrote, "Tallahassee Aug 85 Obs. Phone Calls (2nd misd.) Jud. (guilty) probation (satisfactory completion)." Id. Respondent made no disclosure on his application with regard to State of Florida v. David Hernandez, No. 81-MM-2153 (Fla. Leon Cty.; May 15, 1981) or with regard to State of Florida v. David Mario Hernandez, No. 5999 (Fla. 2d Cir.; June 16, 1970). After respondent entered a plea of nolo contendere in the former case, to an information charging "a scheme constituting a systematic, ongoing course of conduct with intent to defraud more than one person," Petitioner's Exhibit Number 2, Judge McClamma placed him on six months' probation. The case arose out of respondent's failure to deliver promised photographs. In the latter case, respondent pleaded guilty to four felony counts of "[f]orgery & [u]ttering [checks]." Judge McCord sentenced him to three months in jail, concurrently on each of the first two counts, followed by four years' probation, currently on counts three and four. Even though petitioner's personnel learned of his prior convictions and willful untruthfulness in filling out his application, petitioner granted the application and issued a teacher's certificate to respondent on December 22, 1988. Petitioner's Exhibit No. 1. Mr. Hernandez told petitioner's Katherine Birdsong that he had not listed his first felony convictions and the scheme to defraud charges because he was "embarrassed." T.35. He classified his two more recent convictions as "basically a domestic dispute." Not asked specifically about witnesses or other charges, he did not disclose that the state had listed three women (two ex-wives and a former girlfriend) as witnesses in the obscene telephone call prosecutions; or that a policeman had accused him on October 23, 1987, of making still other obscene telephone calls. Allegations concerning obscene telephone calls were the occasion for respondent's arrest in early 1989. After defense counsel deposed the state's witnesses, criminal charges were dropped; but the same allegation eventually led to the present proceedings. False Application While working as a photographer at Florida State University, a position he had held since September of 1985, respondent made application to the Leon County School Board for employment as a photography instructor. On an application form dated December 17, 1987, in answer to the question, "Have you ever been convicted of a felony or first degree misdemeanor?" he checked a box next to the word "No." Petitioner's Exhibit Number 4. Based on the falsity of this answer "and the allegations . . . regarding the obscene phone calls and his criminal record . . . Respondent has lost effectiveness," (T.198) or so "believe[s]" id. David D. Giordano, Leon County Schools' Director of Personnel Services, who testified the Leon School District would not re"employ respondent.
Recommendation It is, accordingly, recommended that petitioner dismiss the administrative complaint. RECOMMENDED this 18th day of October, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3662 Petitioner's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 11, 12, 13, 14, the first sentence of No. 18, Nos. 27, 28, the last sentence of No. 30, No. 32, the last clause of the last sentence of No. 33, Nos. 34, 36 and 37 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 4, the application was submitted some time after it was executed. With respect to petitioner's proposed findings of fact Nos. 8, 9, 10, 15, 16, and 17, since petitioner did not allege that respondent obtained his license fraudulently, the substance of these conversations, which took place before licensure, is immaterial. The form itself indicated obscene phone calls, not a one-time incident. Respondent was not asked if a policeman had accused him of anything. With respect to the second clause of the second sentence of petitioner's proposed finding of fact No. 18, and proposed findings of fact Nos. 19 through 26, 29, the first sentence of No. 30, No. 31 the first sentence and first clause of the second sentence of No. 33 and No. 35, the evidence in support consisted of hearsay inadmissible over objection in civil proceedings, which cannot form the basis for findings of fact, under Section 120.58(1)(a), Florida Statutes (1989). E.G., Johnson v. Department of Health and Rehabilitative Services, 546 So.2d 741 (Fla. 1st DCA 1989); Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986). With respect to petitioner's proposed finding of fact No. 38, the statutory standard is "effectiveness as an employee of the school board." With respect to the first sentence of petitioner's proposed finding of fact No. 39, respondent's reputation for truth and integrity is a subordinate matter; whether a fellow photographer thinks he is a thief was not put in issue by the pleadings. COPIES FURNISHED: David Hernandez 1508 Viscount Avenue Tallahassee, FL 32302 Carolyn LeBoeuf, Esquire Brooks & LeBoeuf 863 East Park Avenue Tallahassee, FL 32301 Karen Barr Wilde, Executive Director 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400
The Issue The issue is whether Respondent's Correctional Certificate No. 164605 should be disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), seeks to discipline Correctional Certificate No. 164605 held by Respondent, Eric T. Jenkins, on the grounds that in December 1998 he was in possession of more than 20 grams of cannabis, a controlled substance, and he illegally carried contraband (cannibis) onto the grounds of Florida State Prison (FSP) while employed at FSP as a correctional officer. In his request for a hearing, Respondent denied the allegations. Periodically, and without notice, the Department of Corrections (DOC) sends a small contraband interdiction team (team) to various state correctional institutions for the purpose of intercepting contraband that may be covertly brought into the facility by DOC employees or inmate visitors. The team consists of a small number of specially trained DOC employees, including K9 units, and a volunteer Florida Highway Patrol trooper, who assists the team in making arrests. On Sunday, December 20, 1998, a team targeted FSP and arrived on the premises around 5:00 a.m. The inspection lasted until shortly after the last shift of employees reported to work around 4:00 p.m. Besides patting down employees and visitors, the team also searched the vehicles of employees that were parked in the employees' parking lot inside the prison. Respondent worked the last shift that day and arrived shortly before 4:00 p.m. He was driving an Isuzu Amigo with Florida vehicle tag "WSM 82B." To assist the team in its search, the team used several specially trained dogs (Blue, Smokey, and Thor) who were assigned the task of sniffing parked vehicles for narcotic odors. When a dog recognizes a narcotic odor, it "alerts" or responds to the odor and remains passively in front of the vehicle. After Blue "alerted" at the rear of Respondent's vehicle, a second dog, Thor, was brought to the vehicle and he also responded in the same manner. Respondent was then notified that the team wished to search his vehicle, and he executed a written Consent to Search form ageeing to a search. A search conducted by a DOC officer discovered a latex glove hidden under the front passenger seat of Respondent's vehicle. Inside the glove were two compressed baggies containing approximately 55 grams of a substance that appeared to be cannibis. Laboratory testing by a state chemist confirmed that the substance was indeed cannabis, and that it weighed 51.5 grams. Although the street value of the drugs was only around $275.00, in a prison environment, the drugs had a far greater value. Respondent initially agreed to be interviewed by a Florida Highway Patrol trooper at the prison regarding the contraband. He subsequently had a change of heart and declined to answer any questions. Respondent was then arrested for "drug offenses," booked into the Bradford County Jail, and charged with violating Sections 893.13 and 944.47(1)(a)4., Florida Statutes (1997). However, the disposition of the criminal matter is unknown. In any event, after being arrested, Respondent was immediately terminated from his position at FSP. In mitigation, Respondent has been certified as a correctional officer since June 26, 1996, and there is no evidence that prior disciplinary action has been taken against him. In aggravation, Respondent used his official authority to facilitate his misconduct; he was employed as a correctional guard when the misconduct occurred; Respondent has made no efforts of rehabilitation; Respondent stood to receive pecuniary gain by selling the contraband in the prison; and there are two established counts of violations of the statute requiring that correctional officers maintain good moral character.
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 determining that Respondent has failed to maintain good moral character, as charged in the Administrative Complaint, and that his Correctional Certificate No. 164605 be revoked. DONE AND ENTERED this 29th of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 29th day of June, 2000. COPIES FURNISHED: A. Leon Lowrey, Jr., Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Karen D. Simmons, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Eric T. Jenkins 1000 Bert Road Jacksonville, Florida 32211
