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.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8FLORIDA DEPARTMENT OF LAW )

13ENFORCEMENT, CRIMINAL JUSTICE )

17STANDARDS AND TRAINING COMMISSION, )

22)

23Petitioner, )

25)

26vs. ) Case No. 98-4977

31)

32KEITH R. DELANO, )

36)

37Respondent. )

39___________________________________)

40RECOMMENDED ORDER

42Pursuant to notice, a formal hearing was held in this case

53on March 11, 1999, at Fort Lauderdale, Florida, before Claude B.

64Arrington, a duly-designated Administrative Law Judge of the

72Division of Administrative Hearings.

76APPEARANCES

77For Petitioner: Karen D. Simmons, Esquire

83Office of the General Counsel

88Florida Department of Law Enforcement

93Post Office Box 1489

97Tallahassee, Florida 32302-1489

100For Respondent: C. Michael Cornely, Esquire

106Hartman and Cornely, P.A.

11010680 Northwest 25th Street, Suite 200

116Miami, Florida 33172

119STATEMENT OF THE ISSUES

123Whether Respondent, a certified law enforcement officer,

130failed to maintain good moral character as alleged in the Amended

141Administrative Complaint.

143PRELIMINARY STATEMENT

145On December 19, 1995, Petitioner filed an Administrative

153Complaint against Respondent that contained certain factual

160allegations pertaining to sexual misconduct with his adult

168daughter and, based on those factual allegations, charged that

177Respondent had failed to maintain good moral character.

185Respondent timely denied the allegations of the Administrative

193Complaint. On November 6, 1998, the matter was referred to the

204Division of Administrative Hearings. On March 8, 1998,

212Petitioner moved for leave to amend the Administrative Complaint

221to correct certain scrivener's errors, which did not change the

231material allegations of the Administrative Complaint. The motion

239was granted without objection.

243The Administrative Complaint, as amended, charged that

250Respondent violated the provisions of Sections 943.1395(6)

257and/or (7), Florida Statutes, and Rule 11b-27.0011(4)(a)

264and/or (b) and/or Rule 11b-20.0012(1)(f), Florida Administrative

271Code, by failing to maintain the qualifications established in

280Section 943.13(7), Florida Statutes, which requires a certified

288law enforcement officer to have good moral character.

296At the formal hearing, Petitioner presented the testimony of

305Shannon Delano and Detective Deborah Cox. Ms. Delano is

314Respondent's daughter. Detective Cox is employed by the Broward

323County Sheriff's office in its sex crimes unit. Petitioner

332offered four exhibits, two of which were accepted into evidence

342and two of which were rejected. Respondent testified on his own

353behalf and presented the additional testimony of David Ward, the

363owner of an private investigative and security company that

372employs Respondent. Respondent presented one composite exhibit,

379which was accepted into evidence.

384A transcript of the proceedings has been filed. The

393Petitioner and Respondent filed proposed recommended orders,

400which have been duly-considered by the undersigned in the

409preparation of this Recommended Order.

414FINDINGS OF FACT

4171. Respondent was certified by the Petitioner on April 2,

4271982, and was issued Law Enforcement and Instructor Certificate

436Number 124699.

4382. Respondent was employed by the Miami Dade Police

447Department from April 2, 1982, until his employment was

456terminated as a result of the incident at issue in this

467proceeding. Respondent had a good record while working for the

477Miami Dade Police Department. He earned several commendations

485and received performance evaluations of satisfactory or above.

4933. Respondent is the biological father of Shannon Delano, a

503female born March 10, 1973.

5084. Shannon's parents divorced when she was four, and her

518mother was awarded primary custody of Shannon and of Shannon's

528twin sister. In 1981, Respondent moved to Florida. As a

538consequence of the divorce and of Respondent's move to Florida,

548Shannon seldom saw her father while she was growing up. Shannon

559maintained periodic telephone contact with him over the years and

569visited him in Florida in 1992, while she was on Spring break.

581They had a pleasant visit on that occasion.

5895. After he moved to Florida, Respondent married for the

599second time to a woman named Patrice. Respondent and Patrice had

610a son named Sean.

6146. Shannon joined the United States Air Force on

623October 15, 1992. Her permanent assignment was as a member of

634the military police at Langley Air Force Base in Virginia. In

6451993, she was temporarily assigned to duty in the United Arab

656Emirates (UAE) as a support person for Desert Storm. While in

667the UAE, Shannon talked to Respondent occasionally by telephone.

6767. While she was in the UAE, Shannon and Respondent agreed

687that she would visit Respondent and Sean when she returned to the

699United States from the UAE. Respondent and Patrice had divorced

709by that time and Respondent was living alone in a two-bedroom

720apartment in Broward County, Florida. Their visit began on

729January 8, 1994. Respondent paid for Shannon's roundtrip airline

738ticket from Virginia to Florida.

7438. The visit was uneventful until the evening of

752January 12, 1994.

7559. Respondent worked his usual hours on January 12, 1994,

765and thereafter returned to the two-bedroom apartment at

773approximately 6:00 p.m. Respondent and Shannon had made plans to

783go out to eat dinner and then go to a comedy club that night.

797Respondent and Shannon were alone in the apartment.

80510. Respondent and Shannon engaged in a conversation in the

815living room area of the apartment. Because Shannon thought

824Respondent was despondent about his child custody fight over his

834son and his relationship with Shannon's twin sister, she hugged

844him and began to rub his back. There is a conflict in the

857evidence as to what happened next.

86311. The record establishes clearly and convincingly that

871Respondent thereafter preformed oral sex on Shannon, that he

880placed his mouth and tongue in her vaginal area, that he

891penetrated her vagina with his finger, and that he penetrated her

902anus with his finger.

90612. The conflict is whether Shannon was a willing

915participant in this sexual encounter. According to her

923testimony, Respondent forced her to the floor using a police

933take-down technique; he forcibly removed her clothing, and he

942held her down with his body and with one arm while he performed

955the sexual acts on her. She testified that she asked him to

967stop, but that she was too stunned to physically fight him.

97813. Respondent testified that Shannon was a willing

986participant and that the sexual encounter was consensual.

99414. Shannon and her father went to the comedy club that

1005night, she subsequently rode with him on patrol where she met

1016several of his colleagues, and she stayed with him at his

1027apartment until her scheduled return flight to Virginia.

1035Shannon returned to active duty in Langley, Virginia, as

1044scheduled without reporting the incident. Approximately two

1051weeks after the incident, she reported the incident to her

1061superiors. She thereafter contacted the Broward County Sheriff's

1069office, who assigned Detective Deborah Cox to conduct an

1078investigation.

107915. As part of her investigation, Detective Cox had Shannon

1089engage in a telephone conversation with Respondent that Detective

1098Cox monitored and taped. Detective Cox also had Patrice engage

1108in a telephone conversation with Respondent that Detective Cox

1117monitored and taped.

112016. In his telephone conversation with Patrice, Respondent

1128categorically denied that he touched Shannon and lamented that he

1138was being falsely accused.

114217. Although there are statements made by Respondent

1150contained in his telephone conversation with Shannon that

1158substantiate his position that the sexual encounter was

1166consensual, 2 the following excerpts establish that Respondent did

1175what he thought Shannon wanted him to do, not what she consented

1187for him to do:

1191Shannon: I guess I just need to understand

1199why you felt the need to touch me that way.

1209Respondent: I find, to be perfectly honest,

1216I thought you had the need for it, believe me

1226it's nothing I wanted, it's nothing I ever

1234thought about, it's not something I consider

1241to be normal thing between a father and a

1250daughter.

1251Shannon: I mean if I had the need to have

1261that touch, why did it have to come from you,

1271I mean -

1274Respondent: It's something I thought you

1280asked for, or it's something you wanted,

1287believe me it's not something I want to do,

1296it's not something I thought about, something

1303that I looked forward to or thought about

1311afterwards as being something good. Do you

1318think you've had sleepless night over it, I

1326had from that day forward. It's bothered me,

1334it's upset me, it's bothered me a lot since

1343then. I never would have believed that I

1351could have done that , all I've ever tried to

1360be is what you needed at the time. Obviously

1369what you needed or what I thought you needed

1378wasn't what you think you need now. Whether

1386it was or it wasn't then, I really can't tell

1396you. I, from what you said, from what you

1405did, from the way you acted, felt, truly

1413believed that's what you wanted and what you

1421felt you needed. . . .

142719. The conflict in the testimony is resolved by finding

1437that while she did not physically resist the sexual encounter,

1447she did not implicitly or explicitly consent to the sexual

1457encounter.

145820. Detective Cox turned over the results of her

1467investigation to the State Attorney's office, who prosecuted

1475Respondent on felony charges of sexual battery and on misdemeanor

1485charges of committing Unnatural or Lascivious Acts. Based on the

1495sexual encounter of January 12, 1994, Respondent was convicted of

1505five misdemeanor counts of committing Unnatural or Lascivious

1513Acts. He was acquitted of the felony sexual battery charges.

1523CONCLUSIONS OF LAW

152621. The Division of Administrative Hearings has

1533jurisdiction of the parties to and the subject of this

1543proceeding. Section 120.57(1), Florida Statutes.

154822. Petitioner has the burden of proving by clear and

1558convincing evidence the allegations against Respondent. See

1565Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

1576Co. v. Department of Agriculture and Consumer Services , 550

1585So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

1597645 So. 2d 398 (Fla. 1994). The following statement has been

1608repeatedly cited in discussions of the clear and convincing

1617evidence standard:

1619Clear and convincing evidence requires that

1625the evidence must be found to be credible;

1633the facts to which the witnesses testify must

1641be distinctly remembered; the evidence must

1647be precise and explicit and the witnesses

1654must be lacking in confusion as to the facts

1663in issue. The evidence must be of such

1671weight that it produces in the mind of the

1680trier of fact the firm belief of [sic]

1688conviction, without hesitancy, as to the

1694truth of the allegations sought to be

1701established. Slomowitz v. Walker , 429 So. 2d

1708797, 800 (Fla. 4th DCA 1983).

171423. Section 943.13(7), Florida Statutes, establishes that

1721good moral character is a minimum qualification for law

1730enforcement officers in the State of Florida.

173724. In Zemour, Inc. v. Division of Beverage , 347 So. 2d

17481102, 1105 (Fla. 1st DCA 1977), an applicant for a beverage

1759license was denied the same after an administrative finding that

1769the applicant was not of good moral character. The court's

1779defined moral character as follows:

1784Moral character as used in this statute means

1792not only the ability to distinguish right and

1800wrong, but the character to observe the

1807difference; the observance of rules of right

1814conduct, and conduct which indicates and

1820establishes the qualities generally

1824acceptable to the populace for positions of

1831trust and confidence.

183425. Similarly, in Florida Board of Bar Examiners Re:

1843G.W.L. , 364 So. 2d 454, 458 (Fla. 1978), the Florida Supreme

1854Court, in a case involving admission to the bar stated that a

1866finding of good moral character:

1871should not be restricted to those acts that

1879reflect moral turpitude, but rather extends

1885to acts and conduct which would cause a

1893reasonable man to have substantial doubts

1899about an individual's honesty, fairness, and

1905respect or the rights of others and for the

1914laws of the state and nation.

192026. The position of law enforcement officer is one of great

1931public trust. There can be no more basic public expectation than

1942that those persons who enforce the laws must themselves obey the

1953law. City of Palm Bay v. Bauman , 475 So. 2d 1322 (Fla. 5th DCA

19671989).

196827. Rule 11B-27.0011(4), Florida Administrative Code,

1974defines good moral character for the purposes of imposing

1983disciplinary action upon Florida law enforcement officers, and

1991represents the applicable standard in effect at the time

2000Respondent allegedly committed the violations set forth in the

2009Administrative Complaint. Among the acts that constitute the

2017failure to maintain good moral character is the following, found

2027at Rule 11B-27.0011(4)(c)4., Florida Administrative Code:

2033(4) For the purposes of the Commission's

2040implementation of any of the penalties

2046specified in Section 943.1395(6) or (7),

2052F.S., a certified officer's failure to

2058maintain good moral character, as required by

2065Section 943.13(7), F.S., is defined as:

2071* * *

2074(b) The perpetration by the officer of an

2082act which would constitute any of the

2089following misdemeanor or criminal offenses,

2094whether criminally prosecuted or not:

2099Sections . . . 800.02 . . . .

210828. Section 800.02, Florida Statutes, provides that it is a

2118second degree misdemeanor for a person to commit an unnatural and

2129lascivious act.

213129. Petitioner established by clear and convincing evidence

2139that Respondent committed unnatural and lascivious acts, thereby

2147establishing that Respondent failed to maintain good moral

2155character.

215630. Petitioner also established by clear and convincing

2164evidence that Respondent failed to maintain good moral character

2173as that term has been defined by Florida courts. Respondent's

2183acts against his daughter were contrary to fundamental notions of

2193good moral character, whether her participation was consensual or

2202non-consensual. The conclusion is inescapable that Respondent

2209used his position of influence over Shannon for his own sexual

2220gratification.

222131. Section 943.1395(7), Florida Statutes, provides that:

2228Upon a finding by the Commission that a

2236certified officer has not maintained good

2242moral character . . . the Commission may

2250enter an order imposing . . . penalties which

2259include revocation, suspension, probation

2263and/or a reprimand.

226632. Rule 11B-27.005(5), Florida Administrative Code,

2272provides certain disciplinary guidelines, including circumstances

2278that may be considered aggravating and mitigating. Although

2286those guidelines have been reviewed, there is no specific

2295guideline that governs the disposition of this matter. In making

2305the recommendation that follows, the undersigned has concluded

2313that Respondent's Exhibit 1, which reflects his performance

2321ratings and the commendations he earned while employed as a

2331police officer, and the testimony of Mr. Ward, 3 are insufficient

2342to mitigate the serious acts that underpin this proceeding.

2351RECOMMENDATION

2352Based on the foregoing Findings of Fact and Conclusions of

2362Law, it is RECOMMENDED that Petitioner enter a final order that

2373adopts the findings of fact and conclusions of law contained

2383herein; finds Respondent guilty of failing to maintain good moral

2393character; and revokes his certification as a Law Enforcement

2402Officer and Instructor (Certificate Number 124699).

2408DONE AND ENTERED this 12th day of May, 1999, in Tallahassee,

2419Leon County, Florida.

2422___________________________________

2423CLAUDE B. ARRINGTON

2426Administrative Law Judge

2429Division of Administrative Hearings

2433The DeSoto Building

24361230 Apalachee Parkway

2439Tallahassee, Florida 32399-3060

2442(850) 488-9675 SUNCOM 278-9675

2446Fax Filing (850) 921-6847

2450www.doah.state.fl.us

2451Filed with the Clerk of the

2457Division of Administrative Hearings

2461this 12th day of May, 1999

2467ENDNOTES

24681/ In reaching the conclusion that the sexual encounter was not

2479consensual, the undersigned has considered Shannon's behavior

2486following the incident and the evidence that she had, on two

2497prior occasions, had sexual encounters that she believed the male

2507involved had taken liberties with her. Also considered was the

2517evidence that Shannon had been in counseling subsequent to this

2527incident.

25282/ Mr. Ward, the owner of Respondent's present employer,

2537testified that he believed Respondent to be of good moral

2547character.

2548COPIES FURNISHED:

2550Karen D. Simmons, Esquire

2554Office of the General Counsel

2559Florida Department of Law Enforcement

2564Post Office Box 1489

2568Tallahassee, Florida 32302-1489

2571C. Michael Cornely, Esquire

2575Hartman and Cornely, P.A.

257910680 Northwest 25th Street, Suite 200

2585Miami, Florida 33172

2588Leon Lowry, II, Program Director

2593Division of Criminal Justice

2597Professionalism Services

2599Department of Law Enforcement

2603Post Office Box 1489

2607Tallahassee, Florida 32302

2610Michael Ramage, General Counsel

2614Department of Law Enforcement

2618Post Office Box 1489

2622Tallahassee, Florida 32302

2625NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2631All parties have the right to submit written exceptions within 15

2642days from the date of this Recommended Order. Any exceptions to

2653this Recommended Order should be filed with the agency that will

2664issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/17/1999
Proceedings: Agency Final Order
PDF:
Date: 08/17/1999
Proceedings: Recommended Order
Date: 08/17/1999
Proceedings: Final Order filed.
PDF:
Date: 05/12/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 03/11/99.
Date: 04/15/1999
Proceedings: Order Sustaining Objections to Petitioner`s Exhibits Three and Four sent out.
Date: 04/15/1999
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 04/06/1999
Proceedings: Respondent`s Proposed Order, Findings of Fact, Argument, Citation of Authority, and Conclusions of Law filed.
Date: 04/06/1999
Proceedings: (Petitioner) Notice of Filing Transcript filed.
Date: 04/05/1999
Proceedings: Transcript filed.
Date: 03/19/1999
Proceedings: (Petitioner) Notice of Filing Exhibits; Exhibits filed.
Date: 03/11/1999
Proceedings: CASE STATUS: Hearing Held.
Date: 03/08/1999
Proceedings: Petitioner`s Response to Prehearing Order filed.
Date: 03/08/1999
Proceedings: Petitioner`s Request for Admissions to Respondent rec`d
Date: 03/08/1999
Proceedings: Notice of Filing; Petitioner`s Second Request for Admissions With Respondent`s Answer; Petitioner`s Second Request for Admissions to Respondent rec`d
Date: 03/08/1999
Proceedings: Notice of Filing; Petitioner`s Request for Admissions & Interrogatories and Respondent`s Answer; Response to the Petitioner`s First Set of Interrogatories; Respondent`s Admission rec`d
Date: 03/08/1999
Proceedings: Petitioner`s Motion for Leave to Amend Administrative Complaint to Correct Scrivener`s Error; Petitioner`s Motion for Order Deeming Admission Admitted rec`d
Date: 02/26/1999
Proceedings: (Respondent) Pre-Hearing Stipulation (filed via facsimile).
Date: 12/03/1998
Proceedings: Notice of Hearing sent out. (hearing set for 3/11/99; 9:00am; Ft. Lauderdale)
Date: 12/03/1998
Proceedings: Prehearing Order sent out.
Date: 12/03/1998
Proceedings: (Petitioner) Amended Response to Initial Order filed.
Date: 11/23/1998
Proceedings: Ltr. to Judge Arrington from C. Cornely re: Reply to Initial Order filed.
Date: 11/23/1998
Proceedings: (Petitioner) Response to Initial Order filed.
Date: 11/13/1998
Proceedings: Initial Order issued.
Date: 11/06/1998
Proceedings: Request for Assignment of Administrative Law Judge; Administrative Complaint; Election of Rights filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
11/06/1998
Date Assignment:
11/13/1998
Last Docket Entry:
08/17/1999
Location:
Fort Lauderdale, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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