The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on March 14, 1988, as a law enforcement officer, Certification Number 55408, and at all times relevant, the certification was active. Between November of 1993 and March of 1994, the Respondent was employed as a police officer with the Orlando Police Department. During this time, the Respondent was assigned to the Southeast Patrol Division during the midnight shift. In August of 1993, Yvette Jolene Bevivino (Bevivino) became acquainted with the Respondent. At the time Bevivino was employed at Shoney's Restaurant on the 1700 block of South Semoran in the City of Orlando as a Dining Room Supervisor. The Respondent would stop by at the restaurant and talk to Bevivino after she got off at work. The Respondent would usually stop by sometime between midnight to 2:00 a.m. to see her. Usually when the Respondent came to visit he was in uniform. There were, however, times when Respondent told her that he was working undercover. There were other instances that while Respondent was talking to her, he received a radio dispatch, and he would have to leave. Between November of 1993 and March of 1994, Bevivino and the Respondent would leave the restaurant area, go to a secluded location, and engage in sexual conduct. Bevivino and the Respondent engaged in sexual intercourse on two or three occasions. Bevivino performed oral copulation on the Respondent on one occasion, and she observed the Respondent masturbate on one occasion. Usually the liaisons were initiated by the Respondent stopping by the restaurant when she was getting off work. Bevivino would then follow the Respondent to a wooded area behind Denny's on State Road 436 by the airport. The Respondent was dressed in his uniform on each occasion and was driving an Orlando Police Department vehicle. At least some, if not all, of the sexual encounters were interrupted by the Respondent receiving a radio dispatch. If that occurred, the Respondent and Bevivino would complete the act and the Respondent would leave. The sexual encounters with Bevivino would last from 15 minutes to one hour and 15 minutes. On or about July 25, 1994, Sgt. Paul Rooney was employed by the Orlando Police Department and assigned to the Internal Affairs Division. The Respondent stated to Sgt. Rooney on July 25, 1994, and again on August 8, 1994, that he had been having sexual relations with a female while he was on duty and in uniform. On August 8, 1994, Sgt. Rooney formally interviewed the Respondent, and the Respondent was placed under oath prior to his interview. It was the policy of the Orlando Police Department that officers are available at all times they are on duty, even for meal breaks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993), and that Respondent's certification be REVOKED. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. Paul D. Johnston, General Counsel Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Andrew J. Sanderson 946 Malden Court Longwood, Florida 32750 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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
