98-004977 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Keith R. Delano Status: Closed Recommended Order on Wednesday, May 12, 1999.

Summary: Law enforcement officer who had non-consensual sex with his daughter lacked good moral character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, CRIMINAL JUSTICE )

STANDARDS AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-4977

)

KEITH R. DELANO, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on March 11, 1999, at Fort Lauderdale, Florida, before Claude B.

Arrington, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

Office of the General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: C. Michael Cornely, Esquire

Hartman and Cornely, P.A.

10680 Northwest 25th Street, Suite 200

Miami, Florida 33172

STATEMENT OF THE ISSUES

Whether Respondent, a certified law enforcement officer,

failed to maintain good moral character as alleged in the Amended

Administrative Complaint.

PRELIMINARY STATEMENT

On December 19, 1995, Petitioner filed an Administrative

Complaint against Respondent that contained certain factual

allegations pertaining to sexual misconduct with his adult

daughter and, based on those factual allegations, charged that

Respondent had failed to maintain good moral character.

Respondent timely denied the allegations of the Administrative

Complaint. On November 6, 1998, the matter was referred to the

Division of Administrative Hearings. On March 8, 1998,

Petitioner moved for leave to amend the Administrative Complaint

to correct certain scrivener's errors, which did not change the

material allegations of the Administrative Complaint. The motion

was granted without objection.

The Administrative Complaint, as amended, charged that

Respondent violated the provisions of Sections 943.1395(6)

and/or (7), Florida Statutes, and Rule 11b-27.0011(4)(a)

and/or (b) and/or Rule 11b-20.0012(1)(f), Florida Administrative

Code, by failing to maintain the qualifications established in

Section 943.13(7), Florida Statutes, which requires a certified

law enforcement officer to have good moral character.

At the formal hearing, Petitioner presented the testimony of

Shannon Delano and Detective Deborah Cox. Ms. Delano is

Respondent's daughter. Detective Cox is employed by the Broward

County Sheriff's office in its sex crimes unit. Petitioner

offered four exhibits, two of which were accepted into evidence

and two of which were rejected. Respondent testified on his own

behalf and presented the additional testimony of David Ward, the

owner of an private investigative and security company that

employs Respondent. Respondent presented one composite exhibit,

which was accepted into evidence.

A transcript of the proceedings has been filed. The

Petitioner and Respondent filed proposed recommended orders,

which have been duly-considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent was certified by the Petitioner on April 2,

1982, and was issued Law Enforcement and Instructor Certificate

Number 124699.

2. 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.

3. Respondent is the biological father of Shannon Delano, a

female born March 10, 1973.

4. 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.

5. After he moved to Florida, Respondent married for the

second time to a woman named Patrice. Respondent and Patrice had

a son named Sean.

6. 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.

7. 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.

8. The visit was uneventful until the evening of

January 12, 1994.

9. 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.

10. 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.

11. 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.

12. 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.

13. Respondent testified that Shannon was a willing

participant and that the sexual encounter was consensual.

14. 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.

15. 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.

16. In his telephone conversation with Patrice, Respondent

categorically denied that he touched Shannon and lamented that he

was being falsely accused.

17. 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. . . .

19. 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.

20. 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.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

22. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

Co. v. Department of Agriculture and Consumer Services , 550

So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

645 So. 2d 398 (Fla. 1994). The following statement has been

repeatedly cited in discussions of the clear and convincing

evidence standard:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the evidence must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact the firm belief of [sic]

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983).

23. Section 943.13(7), Florida Statutes, establishes that

good moral character is a minimum qualification for law

enforcement officers in the State of Florida.

24. In Zemour, Inc. v. Division of Beverage , 347 So. 2d

1102, 1105 (Fla. 1st DCA 1977), an applicant for a beverage

license was denied the same after an administrative finding that

the applicant was not of good moral character. The court's

defined moral character as follows:

Moral character as used in this statute means

not only the ability to distinguish right and

wrong, but the character to observe the

difference; the observance of rules of right

conduct, and conduct which indicates and

establishes the qualities generally

acceptable to the populace for positions of

trust and confidence.

25. Similarly, in Florida Board of Bar Examiners Re:

G.W.L. , 364 So. 2d 454, 458 (Fla. 1978), the Florida Supreme

Court, in a case involving admission to the bar stated that a

finding 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 or the rights of others and for the

laws of the state and nation.

26. The position of law enforcement officer is one of great

public trust. There can be no more basic public expectation than

that those persons who enforce the laws must themselves obey the

law. City of Palm Bay v. Bauman , 475 So. 2d 1322 (Fla. 5th DCA

1989).

27. Rule 11B-27.0011(4), Florida Administrative Code,

defines good moral character for the purposes of imposing

disciplinary action upon Florida law enforcement officers, and

represents the applicable standard in effect at the time

Respondent allegedly committed the violations set forth in the

Administrative Complaint. Among the acts that constitute the

failure to maintain good moral character is the following, found

at Rule 11B-27.0011(4)(c)4., Florida Administrative Code:

(4) For the purposes of the Commission's

implementation of any of the penalties

specified in Section 943.1395(6) or (7),

F.S., a certified officer's failure to

maintain good moral character, as required by

Section 943.13(7), F.S., is defined as:

* * *

(b) The perpetration by the officer of an

act which would constitute any of the

following misdemeanor or criminal offenses,

whether criminally prosecuted or not:

Sections . . . 800.02 . . . .

28. Section 800.02, Florida Statutes, provides that it is a

second degree misdemeanor for a person to commit an unnatural and

lascivious act.

29. Petitioner established by clear and convincing evidence

that Respondent committed unnatural and lascivious acts, thereby

establishing that Respondent failed to maintain good moral

character.

30. Petitioner also established by clear and convincing

evidence that Respondent failed to maintain good moral character

as that term has been defined by Florida courts. Respondent's

acts against his daughter were contrary to fundamental notions of

good moral character, whether her participation was consensual or

non-consensual. The conclusion is inescapable that Respondent

used his position of influence over Shannon for his own sexual

gratification.

31. Section 943.1395(7), Florida Statutes, provides that:

Upon a finding by the Commission that a

certified officer has not maintained good

moral character . . . the Commission may

enter an order imposing . . . penalties which

include revocation, suspension, probation

and/or a reprimand.

32. Rule 11B-27.005(5), Florida Administrative Code,

provides certain disciplinary guidelines, including circumstances

that may be considered aggravating and mitigating. Although

those guidelines have been reviewed, there is no specific

guideline that governs the disposition of this matter. In making

the recommendation that follows, the undersigned has concluded

that Respondent's Exhibit 1, which reflects his performance

ratings and the commendations he earned while employed as a

police officer, and the testimony of Mr. Ward, 3 are insufficient

to mitigate the serious acts that underpin this proceeding.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of May, 1999

ENDNOTES

1/ In reaching the conclusion that the sexual encounter was not

consensual, the undersigned has considered Shannon's behavior

following the incident and the evidence that she had, on two

prior occasions, had sexual encounters that she believed the male

involved had taken liberties with her. Also considered was the

evidence that Shannon had been in counseling subsequent to this

incident.

2/ Mr. Ward, the owner of Respondent's present employer,

testified that he believed Respondent to be of good moral

character.

COPIES FURNISHED:

Karen D. Simmons, Esquire

Office of the General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

C. Michael Cornely, Esquire

Hartman and Cornely, P.A.

10680 Northwest 25th Street, Suite 200

Miami, Florida 33172

Leon Lowry, II, 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.