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 The issue in this matter is whether the certificate of Charles L. Dale should be revoked for failure to maintain good moral character under Section 943.1395(5), Florida Statutes (1985) and Section 943.13(7), Florida Statues (1985).
Findings Of Fact Charles L. Dale is certified as a correctional officer in the State of Florida under a certificate issued March 14, 1984 (Tr. 35) 1/ Charles L. Dale married Cynthia Dale and together they had two children. Mr. and Mrs. Dale separated and Mr. Dale was required by court order to make child support payments to Mrs. Dale (Tr. 10). After he fell behind in those payments he had been ordered to bring them current and a date was set by which he was to produce evidence of having made the payments.(Tr. 12). In July of 1985, the day before the date on which Mr. Dale was to produce receipts for having made the past due payments he met Cynthia Dale and drove her to the courthouse. While they were in the car he asked her to sign a receipt for the child support, but she would not sign because it has not been paid (Tr. 12). When she refused to sign the receipt, Mr. Dale put a gun to Cynthia Dale's head to get her to sign the receipts, because he did not want to be jailed for failure to make the child support payments (Tr. 13). Cynthia Dale was in fear that she would be shot if she did not sign the receipt (Tr. 13-14). Mr. Dale ultimately gave up his threats in frustration when Cynthia Dale would not sign the receipt (Tr. 14). Shortly after the incident, Mrs. Dale reported the matter to Officer Kathy Kilpatrick of the West Palm Beach Police Department (Tr.18). The report in this matter resulted in a communication from the police department to the Palm Beach County Sheriff's Office where Mr. Dale was employed (Tr.19). The matter was investigated by William Martin of the Palm Beach County Sheriff's Office for violation of departmental rules on improper use of firearms by Mr. Dale (Tr. 22-23). During the investigation by Deputy Martin, Mr. Dale denied that he had pulled his gun, pointed his gun or even touched his gun while with Cynthia Dale, and denied attempting to force her to sign a receipt for child support, although he did admit there had been a dispute regarding back child support payments. (Tr. 26). Detective Martin performed a polygraph examination upon Mr. Dale and during the post-test interview discrepancies in Mr. Dale's statement he believed the examination had disclosed (Tr.28). In that post-test interview, Mr. Dale admitted that he had pointed his gun at Cynthia Dale for about three minutes, after which time he opened the cylinder on the gun thus removing the bullets from the chamber where they could be fired (Tr. 30). The next day Mr. Dale resigned from the Palm Beach County Sheriff's Department (Tr. 31).
Recommendation It is RECOMMENDED that the certification of Charles L. Dale be revoked. DONE and ORDERED this 6th day of August, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1986.
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 21, 1988, as a law enforcement officer, Certification Number 50-87-002-01, and at all time relevant, certification was active. In March of 1988, the Respondent became employed as a police officer with the Winter Haven Police Department. On two separate occasions in 1990, Lois May engaged in sexual intercourse with Officer Edgar S. Searcy. On both occasions, Officer Searcy paid May $10.00 for her services. Officer Searcy was on duty and in uniform during both of these occurrences. Colleen McCoy performed oral sex on Officer Searcy in exchange for $5.00 on one occasion in 1990. While on duty, Respondent picked up McCoy at her residence, and took her to a secluded location where she performed oral sex on him. He paid her $5.00, and drove her to a location where she could walk to nearby "crack house" and obtain drugs.
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 (1989), and that Respondent's certification be REVOKED. DONE AND ENTERED this 6th day of January, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,9 Rejected as hearsay: paragraphs 6,7,8 Respondent's proposed findings of fact. Accepted in substance: none Rejected as argument or comments on the evidence: paragraphs 1, 2, 3,4 COPIES FURNISHED: Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Steve Brady Regional Legal Advisor Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Doris Hundley Qualified Representative Edgar S. Searcy 490 East Plum Avenue Chipley, Florida 32428
Findings Of Fact Background In June 198, respondent, Florida Department of Law Enforcement, Criminal Justice standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The Pending Application Petitioner, Hattie Moore (Moore), has been employed by the County as a correctional officer since February 18, 1987, without benefit of certification. On August 11, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Moore. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 11, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Moore had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Moore and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Moore filed a timely request for a formal bearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Moore denied that she failed to possess the requisite good moral character necessary for certification. Good Moral Character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Moore on October 15,1986, at which time she admitted that she had used marijuana and cocaine, with the last time being in 1977, and that she had been arrested in 1977 for possession of cocaine. Regarding her use of marijuana and cocaine, the proof demonstrates that any such use ceased in 1977, and that, while Moore cannot remember with exactitude the number of times she used either substance, she most probably used such substances no more than 3-5 times each. Regarding her arrest, the proof demonstrates that on February 3, 1977, when she was arrested, Moore had in her possession less than one gram of cocaine. The state chose not to file a criminal information, and her arrest record was expunged on February 3, 1986. Notwithstanding the County's conclusion, based on its investigation and analysis of Moore's background, that Moore possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her use or possession of marijuana and cocaine over 12 years ago. The Commission's action is not warranted by the proof. Here, Moore, born September 3, 1958, used or possessed marijuana and cocaine infrequently, the last time being over 12 years ago when she was 18 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Moore has been employed by the County as a corrections officer, a position of trust and confidence, for over two years. Her annual evaluations have ranged from satisfactory to above satisfactory, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, and of good moral character. Currently, Moore is married and the mother of two children, ages 11 and 9. She is a homeowner, and also attends Miami Dade Community College where she has amassed 73 credit hours to date. Overall, Moore has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Hattie Moore, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June 1989. WILLIAM J. KENDRICK 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 28th day of June, 1989.
The Issue At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Alfonso Morales (Morales), has been employed by the County as a correctional officer since June 30, 1986, without benefit of certification. On August 11, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Morales. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 11, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Morales had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 7, 1988, the Commission notified Morales and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly carried a concealed firearm. You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Morales filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Morales denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Morales on December 18, 1985, at which time he divulged that, as to arrests, he had been arrested one time in 1980 for carrying a concealed weapon and that, as to drug usage, he had used marijuana one time "many, years ago." Regarding the use of marijuana, the proof demonstrated that Morales had used it but once, and that was in 1976, when he was 17 years old and attending high school. Regarding his arrest for carrying a concealed weapon, the proof demonstrates that in August 1980, Morales was stopped while driving in the City of Miami Beach for a "routine traffic offenses (unsafe equipment)." Following the stop, Morales volunteered to the officers that he had a .25 caliber automatic pistol under the driver's seat which, upon discovery by the officers, resulted in his arrest. No charges were filed, however, as a consequence of that arrest, and Morales' arrest record was expunged and sealed by court order in August 1985. Notwithstanding the County's conclusion, based on its investigation and analysis of Morales' background, that Morales possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing incidents. The Commission's action is not warranted by the proof. Here, Morales, born March 9, 1959, used marijuana one time, 13 years ago when he was 17 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Nor, can Morales' arrest for carrying a concealed weapon, considering what has occurred in his life since that time, be considered persuasive proof, if it ever was, of bad moral character. 4/ Morales graduated from high school in 1981, and entered the U.S. Army in 1982 where he served honorably for over three years. During his service he attained the rank of sergeant, enjoyed a top secret security clearance, garnered several commendations, and all drug screenings met with negative results. Following his discharge from the services, Morales was employed by the State of Florida, Job Services of Florida, until his employment by the County. To date, Morales has been employed by the County as a corrections officer, a position of trust and confidence, for almost three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Morales has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Alfonso Morales, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
The Issue Whether Respondent, a certified law enforcement officer, failed to maintain good moral character as alleged in the Amended Administrative Complaint.
Findings Of Fact Respondent was certified by the Petitioner on April 2, 1982, and was issued Law Enforcement and Instructor Certificate Number 124699. Respondent was employed by the Miami Dade Police Department from April 2, 1982, until his employment was terminated as a result of the incident at issue in this proceeding. Respondent had a good record while working for the Miami Dade Police Department. He earned several commendations and received performance evaluations of satisfactory or above. Respondent is the biological father of Shannon Delano, a female born March 10, 1973. Shannon's parents divorced when she was four, and her mother was awarded primary custody of Shannon and of Shannon's twin sister. In 1981, Respondent moved to Florida. As a consequence of the divorce and of Respondent's move to Florida, Shannon seldom saw her father while she was growing up. Shannon maintained periodic telephone contact with him over the years and visited him in Florida in 1992, while she was on Spring break. They had a pleasant visit on that occasion. After he moved to Florida, Respondent married for the second time to a woman named Patrice. Respondent and Patrice had a son named Sean. Shannon joined the United States Air Force on October 15, 1992. Her permanent assignment was as a member of the military police at Langley Air Force Base in Virginia. In 1993, she was temporarily assigned to duty in the United Arab Emirates (UAE) as a support person for Desert Storm. While in the UAE, Shannon talked to Respondent occasionally by telephone. While she was in the UAE, Shannon and Respondent agreed that she would visit Respondent and Sean when she returned to the United States from the UAE. Respondent and Patrice had divorced by that time and Respondent was living alone in a two-bedroom apartment in Broward County, Florida. Their visit began on January 8, 1994. Respondent paid for Shannon's roundtrip airline ticket from Virginia to Florida. The visit was uneventful until the evening of January 12, 1994. Respondent worked his usual hours on January 12, 1994, and thereafter returned to the two-bedroom apartment at approximately 6:00 p.m. Respondent and Shannon had made plans to go out to eat dinner and then go to a comedy club that night. Respondent and Shannon were alone in the apartment. Respondent and Shannon engaged in a conversation in the living room area of the apartment. Because Shannon thought Respondent was despondent about his child custody fight over his son and his relationship with Shannon's twin sister, she hugged him and began to rub his back. There is a conflict in the evidence as to what happened next. The record establishes clearly and convincingly that Respondent thereafter preformed oral sex on Shannon, that he placed his mouth and tongue in her vaginal area, that he penetrated her vagina with his finger, and that he penetrated her anus with his finger. The conflict is whether Shannon was a willing participant in this sexual encounter. According to her testimony, Respondent forced her to the floor using a police take-down technique; he forcibly removed her clothing, and he held her down with his body and with one arm while he performed the sexual acts on her. She testified that she asked him to stop, but that she was too stunned to physically fight him. Respondent testified that Shannon was a willing participant and that the sexual encounter was consensual. Shannon and her father went to the comedy club that night, she subsequently rode with him on patrol where she met several of his colleagues, and she stayed with him at his apartment until her scheduled return flight to Virginia. Shannon returned to active duty in Langley, Virginia, as scheduled without reporting the incident. Approximately two weeks after the incident, she reported the incident to her superiors. She thereafter contacted the Broward County Sheriff's office, who assigned Detective Deborah Cox to conduct an investigation. As part of her investigation, Detective Cox had Shannon engage in a telephone conversation with Respondent that Detective Cox monitored and taped. Detective Cox also had Patrice engage in a telephone conversation with Respondent that Detective Cox monitored and taped. In his telephone conversation with Patrice, Respondent categorically denied that he touched Shannon and lamented that he was being falsely accused. Although there are statements made by Respondent contained in his telephone conversation with Shannon that substantiate his position that the sexual encounter was consensual,2 the following excerpts establish that Respondent did what he thought Shannon wanted him to do, not what she consented for him to do: Shannon: I guess I just need to understand why you felt the need to touch me that way. Respondent: I find, to be perfectly honest, I thought you had the need for it, believe me it's nothing I wanted, it's nothing I ever thought about, it's not something I consider to be normal thing between a father and a daughter. Shannon: I mean if I had the need to have that touch, why did it have to come from you, I mean - Respondent: It's something I thought you asked for, or it's something you wanted, believe me it's not something I want to do, it's not something I thought about, something that I looked forward to or thought about afterwards as being something good. Do you think you've had sleepless night over it, I had from that day forward. It's bothered me, it's upset me, it's bothered me a lot since then. I never would have believed that I could have done that , all I've ever tried to be is what you needed at the time. Obviously what you needed or what I thought you needed wasn't what you think you need now. Whether it was or it wasn't then, I really can't tell you. I, from what you said, from what you did, from the way you acted, felt, truly believed that's what you wanted and what you felt you needed. . . . The conflict in the testimony is resolved by finding that while she did not physically resist the sexual encounter, she did not implicitly or explicitly consent to the sexual encounter. Detective Cox turned over the results of her investigation to the State Attorney's office, who prosecuted Respondent on felony charges of sexual battery and on misdemeanor charges of committing Unnatural or Lascivious Acts. Based on the sexual encounter of January 12, 1994, Respondent was convicted of five misdemeanor counts of committing Unnatural or Lascivious Acts. He was acquitted of the felony sexual battery charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein; finds Respondent guilty of failing to maintain good moral character; and revokes his certification as a Law Enforcement Officer and Instructor (Certificate Number 124699). DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 May, 1999
The Issue The issue for determination is whether Respondent should deny Petitioner's application for a teaching certificate.
Findings Of Fact 1. Petitioner submitted her application for a teaching certificate on May 26, 1993. Respondent notified Petitioner of its proposed denial of the application on April 5, 1994. Respondent's proposed agency action is based on events that occurred while Petitioner was teaching in the Florida public school system in 1988 and 1989. Background From August, 1988, until February, 1989, Petitioner taught Spanish as a first-year teacher at Lake Wales Senior High School ("Lake Wales") in Polk County, Florida. In the fall of 1988, Petitioner met Brian Keith Swinney. Mr. Swinney was a junior at Lake Wales but was not one of Petitioner's students. Mr. Swinney attended school in the morning and worked as a professional entertainer at Cypress Gardens in the afternoon. Although Mr. Swinney was not one of Petitioner's students, Mr. Swinney and Petitioner knew each other at school. Mr. Swinney's Spanish teacher shared a classroom with Petitioner. Mr. Swinney was also a varsity cheerleader, and Petitioner was a chaperon for the cheerleaders when they traveled to various games. Petitioner and Mr. Swinney dated and developed a relationship that included sexual relations. Sexual relations began on October 4, 1988. In November or December, 1988, Mr. Swinney began residing with Petitioner. On or about February 1, 1989, Petitioner resigned her position with Lake Wales. On February 12, 1989, Petitioner and Mr. Swinney were married. At the time of their marriage, Petitioner was 22. Mr. Swinney was 17 years old on February 17, 1989. Mr. Swinney's parents consented to the marriage. Mr. Swinney's mother drove Mr. Swinney and Petitioner to South Carolina where he and Petitioner were lawfully married. Petitioner and Mr. Swinney moved to California. A child was born of the marriage, and Petitioner remained married to Mr. Swinney for approximately five years. Following a period of separation, Petitioner and Mr. Swinney were divorced on February 28, 1994. After separating from Mr. Swinney, Petitioner relocated to Lee County, Florida. Petitioner applied for a teaching position with the Lee County School District. The District issued a letter of eligibility, and Petitioner began teaching in May, 1993. Current Qualifications And Good Moral Character Petitioner applied for a teaching certificate on May 26, 1993. Petitioner satisfies all of the academic and professional requirements for a teaching certificate. She is over the age of 18. She received her bachelor's degree from Florida Southern College, an accredited institution of higher learning. She executed the required loyalty oath for the state and federal constitutions. Her application was properly completed and executed. Petitioner is competent to perform the duties, functions, and responsibilities of a teacher. Petitioner taught school in several localities in California. Petitioner taught for the Lee County School District during the 1993-1994 school year. She taught as a full-time teacher at Paul Lawrence Dunbar Middle School ("Dunbar") during the day. At night, she taught in the District's night school program at Cape Coral High School ("Cape Coral") in Cape Coral, Florida. Petitioner was recommended for re-employment as a teacher with the Lee County School District for the 1994-1995 school year. Petitioner is a "very capable" and "creative" teacher. Both Renee Highbaugh, Assistant Principal at Dunbar and Petitioner's immediate supervisor, and Belle DeKoff, Administrator for the adult education program at Cape Coral, testified to Petitioner's competence and capability. Respondent stipulated that Petitioner is an "excellent" teacher. Petitioner is of good moral character. Ms. Highbaugh testified to Petitioner's good moral character. Her testimony was credible and persuasive. Petitioner's good moral character is further evidenced by her exemplary teaching record in California and Florida since 1989. Alleged Violations In Notice Of Reasons In 1988 and 1989, Petitioner did not fail to make a reasonable effort to protect students from conditions harmful to their learning. Petitioner and Mr. Swinney did not engage in public displays of affection on campus. Nor did either of them create any condition that was otherwise harmful to students' learning. Petitioner did not fail to protect Mr. Swinney from conditions harmful to his learning. Mr. Swinney's grades did not decline during his relationship and subsequent marriage to Petitioner. Mr. Swinney voluntarily chose to marry Petitioner and obtain his G.E.D. He did so with his parents' permission. Mr. Swinney joined the United States Air Force and was honorably discharged. He is a licensed helicopter pilot. He attends helicopter flight school in California for certification as a commercial instrument instructor. He has a job waiting for him in his desired field when he graduates in February or March, 1995. Mr. Swinney is remarried and resides with his wife in California. Petitioner did not intentionally expose Mr. Swinney to unnecessary embarrassment or disparagement in 1988 and 1989. Petitioner passed notes to Mr. Swinney on occasions. Once, the two kissed in an empty classroom. The notes and kiss were not observed by students or faculty. In January, 1989, Mr. Swinney transferred to Winter Haven High School ("Winter Haven"). He transferred so that he and Petitioner could continue seeing each other without jeopardizing Petitioner's job. By January, rumors about Petitioner's relationship with Mr. Swinney had begun at Lake Wales, and Mr. Swinney wished to avoid further rumors. Mr. Swinney used a false address to enroll at Winter Haven. School officials discovered the false address but permitted Mr. Swinney to attend Winter Haven anyway. At Winter Haven, a male teacher told Mr. Swinney in front of the class, "I know what happened with you in Lake Wales, and that crap's not going to work over here." Mr. Swinney was embarrassed, but his embarrassment was intended by the teacher at Winter Haven and not by Petitioner. Petitioner did not exploit her relationship with Mr. Swinney for personal gain or advantage. Petitioner did not pressure him into their relationship. Mr. Swinney testified that he entered the relationship by his own volition. Petitioner did not commit an act of gross immorality or moral turpitude in 1988 and 1989. Mr. Swinney was a professional entertainer. He periodically lived outside his parents' home with their permission. He frequented adult nightclubs where alcohol was served. He was sexually active and engaged in sexual intercourse with approximately four other partners before meeting Petitioner. Mr. Swinney's parents consented to his marriage to Petitioner and assisted the couple in getting married. Assuming arguendo that, in 1988 or 1989, Petitioner either lacked good moral character, committed an act of gross immorality or moral turpitude, or otherwise violated the provisions of law or rules of the State Board of Education, the prior incidents, standing alone, do not support a conclusion that Petitioner currently lacks the good moral character required for a teaching certificate. Since 1989, Petitioner has demonstrated her good moral character through an exemplary teaching record in California and Florida. Petitioner is a valuable asset to the Lee County School District. The District observed Petitioner in the classroom, recommended Petitioner for re- employment, and is satisfied that Petitioner is of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Petitioner not guilty of the allegations in the Notice Of Reasons and authorizing the issuance of Petitioner's teaching certificate, forthwith. RECOMMENDED this 13th day of January, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1995.
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.
Findings Of Fact 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. 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. 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. 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. Dieguez alternated acts of kindness and generosity toward the victim with threats and intimidation. 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. 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. 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. 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. Dieguez was nevertheless questioned under oath about the abuse allegations by duly-authorized investigating officers. He denied any improper conduct towards the victim. 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. The "contracts," which were admitted into evidence without objection, speak loudly regarding the improper nature of Dieguez' relationship to the victim. 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. 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. 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. 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. Under all the circumstances, the "contacts" in Dieguez' handwriting affirmatively and compellingly demonstrate the unreliability of the victim’s in court denial of abuse. 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.
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
